A colleague referred me to a decided case in Chancery on the point of mixing politics and trusts in England – Cowan v Scargill [1985] I Ch 270.

 Back then, the English coal industry was desperate to save itself – as is the Australian coal industry now.  But English coal miners were led by a frightful firebrand named Arthur Scargill – who turned out to be as crooked as Norm Gallagher, and who was a one-man raison d’être for Mrs Thatcher.  

The coalminers had a pension scheme set by the National Coal Board.  The union was represented on the managing trustee.  The union wanted the investment policy of the trust to reflect the overwhelming wish of the union and members of the fund to save the coal industry.  They wanted to stay out of oil and gas.  (Sound familiar?)  Scargill was stupid and egotistical enough to appear in person in Chancery.  That did not help the judge, Sir Robert Megarry, VC.  The court was dead against the trustees acting for union motives that conflicted with their investment duties.  It ruled that they were wrong to put union policy directives above their duty to act in the best financial interests of the trust members generally.

That would not have surprised lawyers, but it looks to bear directly on the issues raised in the previous note.  Except that here the trustees are not just being pushed in one direction – that looks prima facie to place them is a position of conflict between duties and interests – they are being told by a government regulator – the kind of outfit that attracts the term ‘tame’ – that it will act like Lord Nelson if the trustees at least try to look decent.

That would not go down so well in court.

Two things.  The argument took nine days.  The judge said Mr Scargill had put the case with ‘courtesy and competence’ – but judges hate having to sort out the arguments of litigants in person.  The judge gave judgment eight days after the hearing concluded.  It covered twenty pages.  You can pick your own multiplier for what might unfold now.

And it is curious that the role of Arthur Scargill is now played by Rupert Murdoch, Barnaby Joyce, and ‘conservative’ think tanks.  Arthur was hardly their pin-up boy.  Which is sad.  They would have deserved each other.  And they would have escaped the curse of our children and grandchildren.

Companies – directors improper purposes – politics at the board level.

An essay in nine easy tablets

Some years ago, I wrote a book called ‘The Common Law, A History’.  I wrote it mainly for lawyers, in part because too many were admitted to practice without having been taught the history of the law.  That in my view is worse than sad.  This essay is not a précis of that book.  It is an introduction written for the general reader.  People at large should have an interest in the history that underlies and underwrites our way of life.  It also represents the bare minimum of what law students should be taught.  The alternative may resemble giving a ticket to a doctor who has not opened Gray’s Anatomy.  I will publish the essay by nine consecutive posts on this website.  I hope you get some of the enjoyment in reading it that I got in writing it.

6 Politics as a profession

In some circles nowadays, the word ‘activist’ is uttered with disdain – especially by those haunted by the ‘green left’, whatever that means.  It is hard to know why.  If you hold political views, why should you not get active to advance them?

The people of England were apt to involve themselves in politics at all levels.  They have seen many activists.  Religious groups like Puritans and Methodists could get very political.  The Puritans led the way in the New World, where for better or worse, they would have the numbers.  The Quakers, to their eternal credit, would run a masterly PR campaign to end the slave trade in England.  But the primal activists would become the lawyers, who would in time become a more powerful caste in England than any priesthood had been – even including the Druids.

The men who argued the cases that started the common law – there were of course no women – naturally became clubbable.  England would be the birthplace of gentlemen’s clubs and pubs.  The lawyers after a while quickly divided into two – barristers and judges.  (Solicitors would come later.)  You had the bar and the bench.  And the tradition that judges should only come from the bar soon hardened into custom. 

The lawyers soon became adept at protecting their monopoly.  They got in early.  Clause 45 of Magna Carta provided that the crown would only appoint as officers of the law ‘such men as know the law of the kingdom and well desire to observe it’. 

If you look at the Charter, it is full of very technical drafting that could only have come from professional people operating at the height of their powers – and it is a shame that some in government with a party-political agenda have never heard of clause 45 (which, to repeat, is still part of our law).

By the end of the thirteenth century, the crown had issued a writ to the judges dealing with legal education and giving selected lawyers a monopoly.  The ‘better, worthier, and more promising students’ wishing to become serjeants were to ‘follow the court and take part in its business.’  The students would collect ‘in the crib’, and you will find in the Year Books references to what passed in the crib.  A leading legal historian would later say that at the turn of the century, ‘there was a very brilliant bar in England.’  That is remarkable – for 700 years ago.  The English may have thought that they and the law were cut out for each other.

Universities had their colleges; Freemasons had their lodges; and the lawyers had their Inns of Court.  That is where you started and learned – on the job, going to court.  The Inn would be your second home for life.  They naturally developed their own traditions and paraphernalia.  So, that is where you were indoctrinated – and, how.  You had to attend so many dinners each term, and such teaching as there was never extended to anything like theory or philosophy.  You learned on the job.  Universities had little or no place in the training of working lawyers until many centuries had passed.

As lawyers argued and judges decided cases, texts began to appear that that would become what were called ‘works of authority.’  There were names like Glanvill, Bracton, Fortescue and Hale.  In the 18^th century, Blackstone’s Laws of England would achieve something like biblical status in the U S. 

But these books were quite unlike Roman law texts – they were the for the most part collections of precedents with some commentary.  Anyone looking for the theory of the law would have sounded very odd – as odd as someone sounding off about the elegantia juris (juristic excellence) of the laws of Justinian.

Now any tight cadre of men can easily get up people’s noses and this lot certainly did, but what did they do for the law?  The short answer is that they made it, but we need to go a little further.

First, the Inns were coming into being and their teaching was taking effect at that point in medieval history when English universities were still getting off the ground.  Until then, the priesthood had had a monopoly of higher learning.  And they had abused that monopoly viciously by burning at the stake people who wanted to read the gospel or conduct their worship in their own tongue.  And they had taken the simple teaching of a Jewish hasid and drenched it in the theories of Aristotle and Plato, so putting it beyond almost all the flock.  Only the priest had the power to loose and bind – and the rest of us just had to take them on trust. 

Now all that monopoly was busted.  Sure, the lawyers had their own tricks and quirks, but they were English foibles.  And they were foibles held by people who would be just as happy to have a fight as a feed.

History has in my view underestimated this achievement of the English.  When you link it with events called the Reformation looked at in the last section, the priesthood is being put back in its box in a way that we do not see anywhere else.  It looks to me to be a form of emancipation.

Secondly, as part of their profession, the lawyers were engaged on a daily basis in protecting the liberty of the subject and ensuring due process.  As often as not, it was their duty to argue against the crown, and if they felt intimidated, they were not up to it.  That is still very much the case today, but I am not aware of anything remotely like it in any other part of the world back then – or for some centuries to come.  It is a state of mind fundamental to our concept of the rule of law.

Thirdly, and although you can’t measure any of this, these crotchety, wizened, and smelly denizens of the courts both personally and professionally bespoke a kind of individualism that is central to the way the English – both rulers and ruled – regard government.  Except for purely ceremonial purposes, they are not keen on bending the knee.

Fourthly, they were not beyond following one of the tricks of the priesthood.  The judges were apt to say ‘Don’t tell us what the law is – we made it.’  Or, ‘Your Majesty cannot act as a judge because Your Majesty is not learned in the law.’  Indeed, when Sir Edward Coke, as tough an old nut as any of them, said just that to Charles I – point blank, and on a Sunday morning – His Majesty came close to striking him, in what Dean Roscoe Pound called one of the glories of our jurisprudence.

Fifthly, for all those reasons, Roman law would never take hold in England.

Finally, and for present purposes, most importantly, the English people were about to have it out with their king.  The Stuarts would be silly and devious enough to offer the chance, and people trained in the Inns of Court would take it and become king-breakers from Hell.  People like Elliott, Hampden and Pym – and another man called Oliver Cromwell – had standing, property, character, indoctrination – and God.  They also have towns or streets named after them in the U S. One Stuart was executed; another deported.  The whole House was gone – over the way to Skye, and a bonnie prince who would never make it.

The lawyers were in league with the parliament against the crown.  The Trevelyan clan were apt to go over the top about all this, but it is worth recalling what G M Trevelyan said:

‘Coke had not striven in vain.  He had enlisted the professional pride of the students of the common law against the rival systems especially favoured by the Crown and the Star Chamber, the Admiralty and the Ecclesiastical Court.  He had turned the minds of the young gentlemen of the Inns of Court, who watched him from afar with fear and reverence, to contemplate a new idea of the constitutional functions and of political affinities of their profession, which they were destined in their generation to develop in a hundred ways, as counsel for England had gone to the law with her King.’

Rhapsodic, really.  But let me close with one anecdote.  The dispute with Charles I, which ended on the scaffold, was about whether he had to submit to parliament to get revenue.  This was the ultimate crunch point between parliament and the crown.  The king claimed the right to get ship money.  That claim was very suspect.  Hampden refused to pay and the matter went to court.  The case occupies a large part of one volume of State Trials.  It took me more than one day to read the submissions of Oliver St John.  It is very, very high learning – the high technique of the Year Books.  In the end, enough judges went to waterto allow the crown to stagger on.  They would be dealt with for their failure by the Commons later when order was restored.  But the court was asked to rule that the king’s tax was unlawful.  In most other parts of the world now, people would just fall about the floor laughing at such a lunatic suggestion.

Then the parliament had to deal with the threat of Strafford.  Their court process failed, and they resorted to parliament.  St John was on hand again with a most elaborate argument.  Capped by a coup de grȃce right across the throat of the Earl – who then suffered the fate that would later befall the king obliged to sign his death warrants.

In truth, these were blood sports, and the English and their lawyers were up to them.  It’s a wonder cricket ever took on.

Law -history – English bar – English constitution.

An essay in nine easy tablets

Some years ago, I wrote a book called ‘The Common Law, A History’.  I wrote it mainly for lawyers, in part because too many were admitted to practice without having been taught the history of the law.  That in my view is worse than sad.  This essay is not a précis of that book.  It is an introduction written for the general reader.  People at large should have an interest in the history that underlies and underwrites our way of life.  It also represents the bare minimum of what law students should be taught.  The alternative may resemble giving a ticket to a doctor who has not opened Gray’s Anatomy.  I will publish the essay by nine consecutive posts on this website.  I hope you get some of the enjoyment in reading it that I got in writing it.

5 Religious home rule

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 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 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.

Legal history – reformation – religious self-government.

If you hold investments as a trustee you must act, and only act, in the interests of the beneficial owners of the investments – the beneficiaries of the trust.  You are not there to look after yourself – or your mates, footy club, political party, union, or government.  And if one of them asks you to do so, you know immediately that you have a conflict of interests – between your duty as a trustee and an interest in looking after someone close to you.  So, you just say ‘No’ – and move on.

For good reason, the federal government wants to apply pressure to Russia by persuading Australians to get rid of investments in Russia.  They want super funds to do the same.  Those funds are held on trust.  Two ministers said they had a ‘strong expectation that Australian superannuation funds will review their investment portfolios and take steps to divest any holdings in Russian assets….While Australian superannuation funds only have a small exposure to Russian investments in the context of the $3.5 trillion superannuation system, it is important that Australia sends a clear and unequivocal signal that we condemn in the strongest possible terms Russia’s unprovoked and unjustified attack on Ukraine,’ the ministers said in a joint statement.

But what if doing that is bad financially – and not in the interests of the beneficiaries of the trusts?  Well, the trustees must decline to act as requested by the government.  That is obvious.  To do so would put them in breach of trust – and liable to be sued for it. 

Then the relevant enforcement agency, the Australian Prudential Regulation Authority, announced that it would not take any action against funds that divest their Russian assets provided they had ‘considered such divestments in accordance with their duties.’

This is, at its lowest, very unfortunate.  ‘We will look the other way if you resolve your conflict of interest by doing what we ask – provided that you at least acknowledge that you thought about it first.’

It was not open to the government to say that if you do what we ask, there will be no breach of trust.  They, through their ‘enforcement’, merely say we will not go after you this time.

If the trustee got sued for breach of trust, it could not plead this signal as a defence.  Indeed, if it did so, it might simply see the trustee adding the agency as a defendant – on the ground that the agency put the trustee up to it – a kind of aiding and abetting, or knowing assistance.  If you want a case, try Barnes v Addy.

This is another case of government and its agents not just flirting with but walking all over the law.

Super funds – Russian investments – government directives – breach of trust – knowing assistance by government agency in breach of trust.

My golf was as problematic as my batting.  That is a large statement.  But I had these nightmares about playing golf against Warnie and Punter (Ricky Ponting).  I would have a straight five-foot putt.  They would not say anything.  They would certainly not cheat.  They would just look at me with a crystalline innocence.  And get inside my bloody head.  So that the simple shot became a hazardous minefield.  Some people can beat you just by their aura – and not just in games.

Punter and Warnie had two things in common.  They had skills straight from God.  And they were ferociously and naturally competitive.  They wanted to win, they knew how to do it, and they passed that on to others.  Deadly at golf, they were even more lethal in team games – and in games where the gamesmanship is right in your face.

The two players had something else in common.  They came from the suburbs and they did not fancy school.  Education in that sense was not their go.  They were no toffs. 

Sometimes that showed.  Punter got into some trouble as captain of Australia.  For once, Cricket Australia said something sensible.  They said that Punter had quit school early to become a professional cricketer.  He did not have a Ph D from Oxford or the training to be a diplomat. 

We should bear all that in mind with Warnie.  Nous – in abundance, almost freakish insights; a born poker player; but Fowler, Debrett, or Emily Post?  Gimme a break.  You may as well credit our Hillsong man with mastery of Kant’s Critique of Pure Reason.

Together with the mawkishness from one quarter, we will get snobbery from another.  We are not as free of it here as we like to think.  A while ago, you would hear the following at the footy – ‘You can take the boy out of Footscray, but you can’t take Footscray out of the boy.’  You don’t hear it so much now, which is just as bloody well.  But you still get it for Warnie, who is seen by some as a throwback to Neighbours. 

Well, the boy from Black Rock did not get to Melbourne Grammar.  He certainly did not regret that, and nor do I.  When Warnie left us so abruptly, I was reading Rudyard Kipling’s Kim – for the fifth time.  Warnie did have a lot in common with that boyish, ragged, unlettered hero – whose lama saw him as ‘something of an imp.’

Shane Warne was born into a country where every boy dreams of wearing his nation’s colours.  That is the kind of stuff our dreams are made of.  But what happens when you – like Lord Byron – wake one day and find yourself famous?  And nothing – nothing – in your experience of life has prepared you for this? 

What happens is that you court disaster.  We saw it in full force about two years ago at Cape Town with young men who were just too young to carry the load that we had put on their shoulders. 

Steve Smith recovered.  So did Warnie.  But the captaincy was rightly put of the question for Warnie.  And in thinking about that, I was reminded that I have said I do not see how we could say Smith was fit to play for us, but not fit to be our captain.  Well, Warnie clearly fell into that category.

Warnie was the best cricketer I ever saw.  I say that for the same reason and on the same basis that I assess my favorite footballers.  It is not just their prodigious talent and skill.  It is their capacity to win those big matches.  Warne was a freak as a bowler.  But more than that – much more than that – when he was in our team, we never thought the game was beyond us.  We always thought we could win.  And God knows that he got us over the line in close World Cup matches and Ashes tests – the ones that really count; the ones a nation holds it breath for – and cherishes in its memory.

You can’t teach or buy that.  And the risk of a prodigy is that he may create mayhem in the dressing room – something alleged against Kevin Pietersen. 

As best as we can see, Warnie was the real thing as both a cricket genius and a team player.  This is fundamental for those of us who believe that in the end the issue in the professions or sport ultimately falls to be determined by character – and nothing else. 

The Australian team under Steve Waugh – the iron man – was as tough a side as I have had representing me.  It was inevitable that they would get up some noses, with all that power, skill, and burning drive.  And those egos!  And it was also inevitable that the testosterone would spill over in ways that were then unfortunate and are now verboten. 

Warnie was fortunate that in his pursuit of skirt, he did not join the ranks of serial abusers – or at least, he was not seen to have done so.  Things would have been very different had he arrived a generation later. 

The low point for me was when he turned up in front of the MCG with an English floozie – with his kids.  If you want to make a fool of yourself schmoozing in public with England’s answer to Kylie Minogue, that’s a matter for you, Mate – but in the name of God, spare your kids, and give them a sporting chance of avoiding your addiction to celebrity.

It was not surprising that in one of his flirtations with sense and decency, Warnie was joined by Mark Waugh.  Mark is I think the most gifted cricketer I have seen.  And he had the steel when we needed it in second innings in seriously tough test matches offshore.  But he could not be trusted with the ultimate judgment of what was best for his country – and nor could Warnie.

And Mark Waugh got the kinds of blowback that can be very bad in us.  He was so gifted that he did not appear to be trying.  What dreadful bullshit!  The trouble is that some people who are larger than life bring out the worst in some smaller people.  We can be crippled by that kind of jealousy – in a land that positively celebrates mediocrity. 

And ‘Junior’, as he is called, knows all about snobbery.  It’s not just his grammar; his wife trains neddies in the trots, and he likes a bet.  ‘Good God, old boy, next it will be the dishlickers.’

So, Warnie has left us, and the pain is worse in one part of the nation than others.  Warnie was a St Kilda fan, but he was also the ultimate Melbourne boy.  He was ours – all ours. 

We know all about this kind of stuff in Melbourne.  We are the sports capital of the world – which is one reason why most of us would never live anywhere else. 

And a large part of all that is that this city has a world-famous beating heart – the MCG.  That is the spot in the village where people of all types and colours meet in one community.  This is the stuff that dreams are made of.  Frank ‘Typhoon’ Tyson running through us like a dose of salts – a side that included Harvey and Miller.  Here is where I was lifted off my feet and plucked from a world record crowd at the Grand Final in the Olympic year.  The Demons just fell over the line in 1964.  Gary Sobers flat batted a straight six off an uppity young quick called Lillee.  The same bowler trapped Knott to win the Centenary Test.  Border and Thommo sustained the most famous last stand since Custer.  Akram knocked over Botham in the World Cup Final in the first over of the English innings.  Warnie got a hat trick against England.  And a shy, mature man of colour recently mesmerised the crowd and the nation by roiling through the English.

Melbourne people say you have not lived until you have been there for moments like that.  There is nothing else like it on this earth.  Warnie had his second home there, and the two will remain part of the fabric of this nation.

Bradman came from a different era – and space.  He was deferential – too much so to my lords at Lord’s.  And he hung on to power too long as the eminence grise, and drove an entire generation into the arms of Kerry Packer – and the lucre and razzmatazz through which phenomena like Warnie shoot like meteorites.  In the end, Douglas Jardine and Kerry Packer did more to forge Australian cricket than did Bradman with all of his baggage.  Warnie had plenty of baggage too, but the crowd will forget it – and just remember the good times.

Not everyone felt the same level of shock in Warnie’s end that I and others did – together with the intimation of mortality.  Ian Healy kept wicket to Warne and he knew Warne had problems with his diet. 

Michael Vaughan is a Yorkshireman – a good bloke and fine cricketer – and, like most English players, he was a good mate of Shane Warne.  Vaughan was obviously very distressed by the news.  He had had the most recent Christmas dinner with the Warne family.  Turkey, and all the trimmings.  Warnie, that sometime tubby little boy, stuck with his lasagne sandwiches – splattered with butter.  Always the boy – like the test pilots in The Right Stuff, always seeking to extend the outside of envelope.

Well, it was the fags and the butter that nearly killed me with a heart attack at about the age of 55 – after I had given up smoking nine years beforehand.  This Icarus had flown too close to the sun too long.  It looks like Warnie was taken out by a slider.

Two anecdotes will show why people loved Warnie – yes, loved.  A rock star and Warnie were to appear on TV with Rob Sitch.  (Of The Castle – and who did medicine with my vascular surgeon.)  The rock star turned up in a limo and a retinue of eight.  ‘Where’s bloody Warnie?’  ‘Out the bloody back having a fag with the janitor’. 

When Warnie got into trouble with drugs, he was encouraged by some lawyers to sue for libel.  Large retinues of them turned up at my firm at 101 Collins St for me to mediate the case.  The lawyers looked predatory and they sounded ravenous.  The posturing was just awful to behold.  Then Warnie went missing.  ‘It’s OK, he’s downstairs on the street having a fag with your staff.’  For days later, the staff just walked around ensainted.  They had been in the presence – and he had seen them and talked to them.

The only time I saw anything like it was when a group of our articled clerks went to the MCG to see Muhammad Ali.  They came back visibly blessed.  They were somehow changed.  It is an interesting reflection.  And I am not bullshitting.

There were too balls bowled by Warnie that most of us will go to God with.  Each took out the then English captain.  Neither captain knew how.  Terror spread in the dressing rooms, and the news rang around the world.  Each ball had spun – viciously and noisily, like a rattle snake.  There was one difference.  Warnie got Gatting first ball.  Strauss took two balls.  As another Englishman said, we are such stuff as dreams are made of.

And as I sat there watching all this being replayed, I could not avoid the mawkish.  The tears were coloured green and gold – with a tinge of red.  And I could not get out of my head an absurdly relevant clip from the most famous memorial ever – ‘of the people, by the people, for the people.’  

Extracts from Volume II of My Top Shelf

COLLECTED POEMS

Philip Larkin

The Marvell Press with faber and faber, 1988; edited with an introduction by Anthony Thwaite; quarter bound and cornered in embossed leather with cloth boards, and ribbed spine, with filigree and different leather for title and author.

In my country in 1972, there was a sense of liberation, as we experienced a change in mores (or customs).  The change came not least in language, and we started to hear words that had not until then been admissible in public.  I had already got a foretaste late in the 60’s.  We had been at the MCG watching the Demons get done again, and drinking far too much beer.  One of us three, Johnny, was about to qualify in medicine.  He took us back to his East Melbourne flat to meet his wife.  Some idiot put on the TV.  We saw the then Leader of the Opposition, Mr E G Whitlam, QC, hugging a koala.  My other mate and I nearly fainted when Johnny, in front of his wife, said ‘That would be par for the fucking course.’  That sort of thing just did not happen.

Well, things were different after 1972.  A government that had been there far too long was kicked out; we ended the infamy of our involvement in Vietnam; and we saw a renaissance in our theatre and writing.  David Williamson and others made our foibles hilariously apparent.  We found out how to enjoy laughing at ourselves and to abandon bad old ring-fences of our shame.  The ‘magic word’ was all over the stage. 

Still, it came as a bit of jolt when at a small dinner party in sedate Ivanhoe in about 1974, a mate introduced me (and my wife) to the following poem:

They fuck you up, your mum and dad.
They may not mean to, but they do.
They fill you with the faults they had
And add some extra, just for you.

But they were fucked up in their turn
By fools in old-style hats and coats,
Who half the time were soppy-stern
And half at one another’s throats.

Man hands on misery to man.
It deepens like a coastal shelf.
Get out as early as you can,
And don’t have any kids yourself.

In time, I would learn that that poem (from 1971) was typical of Philip Larkin.  He came from a well off family in Coventry and went to Oxford.  He served a large part of his life as a librarian and part time jazz critic.  But his calling was to writing, which became settled on poetry.  His personal life was spotty – as is the case with most of us – and that and his personal correspondence would enable those with far less art in them to throw stones when they should really have known better. 

The poem above is blunt, no bullshit, with no affected style or fancy words.  The poem looks to tell a simple truth – about the world as it is.  Perhaps it is negative to the point of being bitter – that is very characteristic.  But what about that nasty little kicker at the end?  And if art is a lyrical reflection on the human condition, what is a poet doing denying life?

Larkin, like oysters, may be an acquired taste.  But there is a big difference between learning to swallow an oyster, and getting used to sticking your teeth right into the bloody lemon.  Take the poem Schoolmaster.

He sighed with relief.  He had got the job.  He was safe.

Putting on his gown, he prepared for the long years to come

That he saw, stretching like aisles of stone

Before him.  He prepared for the unreal life

Of exercises, marks, honour, speech days and games,

And the interesting and pretty animals that inspired it all,

And made him a god.  No, he would never fail.

Others, of course, had often spoken of the claims

Of living: they were merely desperate.

His defence of Youth and Service silenced it.

It was acted as he planned: grown old and favourite,

With most Old Boys he was quite intimate –

For though he never realised it, he

Dissolved.  (Like sugar in a cup of tea.)

That might strike you as the kind of character you might see on stage in a one-act play by Alan Bennett.  But is this just a type?  And what about the twist at the end – and that nasty little jab at being intimate?  And when does a librarian get off taking pot-shots at schoolteachers for being neurotic life preservers?

Well, looking at the bleak side of life does not of itself vitiate art – just look at Breughel, Dürer (say, the Melencolia), and Goya – and that ghastly pile of bleeding corpses in the Uffizi.  It is also as well to recall that in America they developed an enduring art form called the blues.  Mr Larkin may have been the English response. 

Home is so sad. It stays as it was left,

Shaped to the comfort of the last to go

As if to win them back. Instead, bereft

Of anyone to please, it withers so,

Having no heart to put aside the theft

And turn again to what it started as,

A joyous shot at how things ought to be,

Long fallen wide. You can see how it was:

Look at the pictures and the cutlery.

The music in the piano stool.  That vase.

Larkin adored Bessie Smith.  (He was brutally myopic about those jazz musicians who came later.  That was a shame.  The off-key tristesse of Miles Davis and Thelonious Monkshould have been right up his alley.)  When it came to Desert Island Discs in 1976, Larkin chose Bessie.  ‘It would have to be one of the jazz records, I can't live without jazz.  The Bessie Smith I think, it is so full of life and so invigorating.’  Which song?  Why, naturally, ‘I’m down in the Dumps.’

You may wish to bring to mind some such facts of life if you are unfortunate enough to step into that minefield of name-calling and labelling called criticism about this poet.  The bullshit passes my understanding, and some of the pettiness is about as edifying as watching someone scrutinise my dunny pan.  Those who think they may be above Larkin might tell us when they were last offered a Fellowship by All Souls.

And we should keep a very close eye on a toff of any description who is looking to go after an artist who wants to talk to people on the street.  We should in truth be on the watch for that very English speciality - common garden snobbery.  And there may even be a touch of more common jealousy – Larkin was hardly ever going to prove a challenge to the likes of George Clooney, but the evidence is in that Larkin was running three women at once at an age where some men are thinking of slowing down.  That kind of behaviour is calculated to lead to the expression of very strong views – from either side of the great divide.  (I have long ceased to wonder at or about the sex lives of the English – a process that set in with Wuthering Heights.)

In his introduction to this finely presented volume – which is a prized possession in my home (it cost a bloody arm and a leg) – Mr Thwaites, one of Larkin’s literary executors, comments on the intense work that Larkin put into his drafts, sometimes over years.  He also comments on the influence of Hardy, Auden and Yeats.  He quotes Larkin:

As for their [the poems’] literary interest, I think that almost any single line by Auden would be worth more than the whole lot put together…Auden’s ease and vividness were the qualities I most wished to gain.

Naturally, Larkin had morbid views about death.  He expressed some in the poem Aubade.

I work all day, and get half-drunk at night.   

Waking at four to soundless dark, I stare.   

In time the curtain-edges will grow light.   

Till then I see what’s really always there:   

Unresting death, a whole day nearer now,   

Making all thought impossible but how   

And where and when I shall myself die.   

Arid interrogation: yet the dread

Of dying, and being dead,

Flashes afresh to hold and horrify.

The mind blanks at the glare. Not in remorse   

—The good not done, the love not given, time   

Torn off unused—nor wretchedly because   

An only life can take so long to climb

Clear of its wrong beginnings, and may never;   

But at the total emptiness for ever,

The sure extinction that we travel to

And shall be lost in always. Not to be here,   

Not to be anywhere,

And soon; nothing more terrible, nothing more true.

This is a special way of being afraid

No trick dispels. Religion used to try,

That vast moth-eaten musical brocade

Created to pretend we never die,

And specious stuff that says No rational being 

Can fear a thing it will not feel, not seeing

That this is what we fear—no sight, no sound,   

No touch or taste or smell, nothing to think with,   

Nothing to love or link with,

The anaesthetic from which none come round…..

That is not a happy condition.  Any life so lived was fraught.  But out of that life came the work in this beautiful book, and for better or worse, that book is a comfort to me in my own life.

As I think reflect on it now, Philip Larkin has at least something in common with another artist considered in this book (although there are plenty of differences).  Jeffrey Smart also used his very refined technique as an artist to help us come to grips with our wholly flawed modern world.  That looks to me to be a very decent thing for either of them to have done, and one for which we should be truly grateful.

So, we might end with a happy little poem.

Day by day your estimation clocks up

Who deserves a smile and who a frown,

And girls you have to tell to pull their socks up

Are those whose pants you’d most like to pull down.

Or will some latterday font of primness deny my right to call that poem happy?  Have we put our foot down even on the birds and the bees? Or have we forgotten what it is just to have fun?

Poetry – Larkin – prudes

An essay in nine easy tablets

Some years ago, I wrote a book called ‘The Common Law, A History’.  I wrote it mainly for lawyers, in part because too many were admitted to practice without having been taught the history of the law.  That in my view is worse than sad.  This essay is not a précis of that book.  It is an introduction written for the general reader.  People at large should have an interest in the history that underlies and underwrites our way of life.  It also represents the bare minimum of what law students should be taught.  The alternative may resemble giving a ticket to a doctor who has not opened Gray’s Anatomy.  I will publish the essay by nine consecutive posts on this website.  I hope you get some of the enjoyment in reading it that I got in writing it.

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.

Legal history – rule of law

To follow up on yesterday’s note, I motored out to Altona Gate this Sunday morning – this was my third visit to fix a problem Telstra had created by its own incompetence and discourtesy.  I timed the run to get there just after opening time this fine morning.  I had just started reading Kim for the fifth time – what a delight and relief from the horrors of today – and took it along in case we had to ring Telstra – from Telstra – and wait for an hour or two.

The shop was shut.  (Geschslossen, or something like that, may be the German word.  I saw it  on the Gemaldegalerie in Dresden after I had spent forty hours getting there to view the putti on the Sistine Madonna.)

There are three problems for Telstra about this failure. 

First, the phone is for many, and particularly those with my health problems, an essential service.  It is not good to flirt with public safety by being capricious in how you provide such a service.

Secondly, there was no sign on the premises of the hours of opening.  And of course, there was no apology.  The word ‘sorry’ is banned from the lips of our politicians and captains of industry.

Thirdly, their website says that this store opens at 11 am on Sundays.  I checked it before I left.  It follows that Telstra has in trade or commerce, and in breach of the law, engaged in misleading and deceptive conduct.  Our law says that the business of a company is to be managed by or under the direction of the directors.  For reasons I have given, the directors of Telstra have failed properly to manage its business.  In my view the directors were involved in the contravention of the law and are personally liable to compensate people damaged by the breach.  The directors can delegate their powers – but not their responsibility.. 

So, back home I go, and try the phone again.  I got the usual flak – from the flak-catchers, and I perservered.  And, Lo!  They were shut, too.

Well, this is all very fine in the Marx Brothers’ Duck Soup, or Charlie Chaplin in The Great Dictator, but not when people are being insulted and abused by the agents of a colossus corrupted by power and greed – and I find myself on the brink of denying half a century of experience and suing the ratbags as a matter of principle.

Finally, I omitted to say yesterday that in light of my complaints about the conduct of Telstra and Rio, I had sold my shares in both.  If they could do that to others, they could do it to me.

May I commend that course to you?

Telstra – misleading conduct – liability of directors

It was silly of me keep my phone with Telstra now that I am back in the city. And am I paying for it!

My phone could take calls but I could not ring out.  Just on the day I was moving a large part of a house.

The next day I took it to a Telstra store.  Only took twenty minutes in heavy traffic to get there.  Altona Gate.  As terrifying as Highpoint.  I found it!  ‘Sorry mate.  We cannot look at your phone unless you have photo I/D’.  This from a man built like a bouncer for obvious reasons.  Their stores are festooned with warnings about customers giving vent to their despair.  It’s not done to slit your wrists on the carpet.

The problem is that the staff are not trained, and even if they were, they would be sacked if they did not act like a robot. 

You get fired at Telstra if you behave like a human being.  At one venue, a young woman, who had not the faintest idea what she was doing, said that Telstra would ask me to rate her out of 10, and that anything less than 8 was a fail.  ‘Think of me – not Telstra.’  So, I lied – and so became complicit in the bastardy of the supplier.  That is an established technique of those regimes we least admire.  One version is known as ‘fascist.’

Back I go with photo I/D.  And blood pressure issues.  Not to mention anger – which I sat on with effort.  After about 15 minutes, I was handed over to a very pleasant young man – who took about 15 more minutes to find the problem. 

Telstra had stopped the phone because a bill had not been paid.  This was because I had lost a credit card and had had to replace it – and notify about twenty merchants of the change.  Whenever this happens, the transition is smooth for any business that is properly run.  But you always have problems with at least two suppliers.  Both Vic Roads and Telstra are world leaders in incompetence and discourtesy – cruelty in truth.  (Vic Roads are a legend in the sticks – its staff get apoplectic if you suggest doing a transaction with them rather than online – another batch of humanity complicit in its own annihilation.)  

Telstra had not given any notice of the termination – before or after.  It’s like treading on an ant.  A couple of days of stress and two unnecessary calls on the delinquent – all for a simple failure of sense and decency.

So, I paid the bill there and then, and – I was told – they set up a direct debit on the new card for the future.  But – although I was on the premises of Telstra, I was told that it might take 24 hours for the payment to take effect and override the ban.  And God help anyone there who might suggest that a mere mortal might contradict the Telstra computer. 

I could avoid that by ringing Telstra, saying that the payment had been made, and quoting the receipt number.  Why not do it online there and then?  I do not know.  Again, that is probably related to the fear of letting a mere human interfere with the program.  ‘Well, why not ring 132200 here and now?’  Silly boy – that would expose us both to waiting at least an hour listening to propaganda and other lies all designed to send us to the mad house.

So, I went home.  Deflated, saddened, and no wiser.

After more than 24 hours, the promised renewal had not taken place.  Well, the chance of Telstra keeping a promise was always a long shot.  So, with grief in my heart, I rang the number that nice man at Telstra had written down for me on the receipt.  Oh, sillier, sillier boy!  How could I possibly ring out to that Telstra number when Telstra had cut the line?  This must be one of Telstra’s playful acts of mercy – to drive you mad faster.

But wait – I went to the website, got into my account – and then you run into those hurdles specifically designed to prevent one human being talking to another.  And you get more of those sickening lies about service.

But – I found a number to Telstra that I got through on!  And then I got all the attempts to drive me away.  And threats of delay.  Well, I knew an hour would be the minimum.  (Aussie Broadband is sensible – they give you the option of ringing you back.  The directors of Telstra don’t agree with that model.  It smacks of both sense and decency – and neither is their schtick.) 

So, I settled in.  Then the computer solemnly declaimed: ‘We’re sorry but this call center is now closed for the day.  Try again tomorrow.’  If you are still alive.  And not in a loony bin.  Just after 4 pm.

In the last few years, I have been taken by ambulance to emergency.  On three occasions.  It will be just a matter of time until the directors of Telstra are complicit in a death.  And their PI policies will not cover them for one consequence of that.

It’s all hilarious on Fawlty Towers. But on the ground, it is insulting, demeaning and dangerous.  It is a symptom of the decline in standards in our public life. 

We are seeing the heartless numbers men replacing humans with robots – and that is a lot worse than disheartening.  Rear Window in the AFR unloaded on Rio for similar insults to our community.  For the dreadful mess people made of the business, a committee docked bonuses by 5%. 

While we cheat on our nurses, underpay our police, and underate our teachers.

We are sliding into the numbed heartlessness of middle-class mediocrity.  The notion of leadership dies on our lips.

Telstra – decline in public life – corporate greed and discourtesy – robots.

In the back of my mind is the notion that if you as a debtor offered your creditor the local currency to pay off a debt, and the creditor declined to accept it, you could if sued plead a defence called legal tender or the like.  If that is correct, it may be neither lawful nor profitable for a bank to refuse payment in cash of a credit card debt. 

The Reserve Bank site is, as you would expect, both Delphic and cautious – and properly so: ‘a. refusal to accept legal tender in payment of an existing debt, where no other means of payment/settlement has been specified in advance, conceivably could have consequences in legal proceedings; for example, the creditor may be unable to enforce payment in any other form.’

But according to this morning’s The Age, NAB now refuses to accept cash to settle credit card debt.  The bullshit?  The bank wants people to bank online so that branch staff can ‘spend more time on more complex customer conversations, including supporting customers with education on evolving digital channels.’ 

It is just nauseating is it not?  They want to control us so that they can sack more people and leach us of what humanity we may have left so that the pitiless mongrels who run these soulless monoliths can keep more cash back from the shareholders who own the business.  Another win for Mammon.

Staff intercept people at the door to direct them to go self-service.  It is like assisted suicide.  If the staff don’t reach targets, they face a ‘performance program.’

Oh, Orwell – where is thy sting?

I refuse to invest in businesses that I think are bad for us.  The exception is the banks – because my super fund really does not have the option.  I am sad about that – and mildly guilty.  But, although I also hold shares in Woollies, I refuse point bank to buy at self-service.  And I have travelled to both Cambridge and Oxford without a newspaper because the station kiosk was not manned.

Decent people have to find ways to tell these grifters where to get off.

And instead of educating their customer, the banks might think of educating their staff.  So that then we won’t get so often met with that sullen look of frightened vacancy when the human being behind the counter fears they may have been invited to step beyond the role of scripted robot. 

When I was acting for banks in the eighties who had tipped farmers into Swiss francs and bankruptcy, the banks had to settle because most of the managers didn’t know the difference between a Swiss franc and a Swiss tart.

And that was when banks had real managers.  Since then, it has all been downhill.

Banking – legal tender – rule by robots – education of bank staff