A libel action is like marriage.  It is not to be entered into lightly or ill-advisedly.  If it goes wrong, and plenty do, it can destroy all that it touches.

Dickens began Bleak House, his indictment of the Court of Chancery, by saying of it that it ‘gives to monied might the means abundantly of wearying out the right, which so exhausts finances, patience, courage, hope, so overthrows the brain and breaks the heart, that there is not an honourable man among its practitioners who would not give—who does not often give—the warning, ‘Suffer any wrong that can be done you rather than come here!’’

The string of long and squalid libel actions in the Federal Court greatly concerns many people, and not just lawyers.  Sordid political squabbles, maintained by interlopers, are absorbing valuable resources, and denying decent people with real grievances their day in court – at your and my expense.   The only dividend for taxpayers looks to be the judicial version of Days of Our Lives live on morning TV.

Allow me, please, to suggest five reasons why we have got into this mess.

1 Witness statements

I have railed against this for so long, it is a wonder they have not put the Dog Act on me.  Here is an example from a paper The Law of Evidence and the Mess We Are In.  (I think it is in the Victorian Bar News.)

The first thing to notice – it is hardly a rule, but it should be self-evident – is that the evidence must come from the witness and not their lawyer.  Counsel may not phrase the question in a way that suggests the answer.  Such a question is called a leading question. …. So, immediately we come to one anomaly with evidence tendered in writing, by affidavit or witness statement.  There, the lawyers don’t just suggest the answer – they write it.  The perils are obvious.  This is why the law banned written statements in crime.  As one seasoned judge remarked, it was just a matter of time before those in court rose up crying ‘Author!  Author!’  If there is no issue about a statement, you can lead the witness; if there is, you must not.  Written evidence is therefore either unnecessary or tainted. 

2 Failure of the judges to control time

The highest courts in the world impose strict time limits on parties and their counsel in ‘enterprises of great pitch and moment’.  It is wrong that the judges do not do this at trial, where the parties and their counsel may be less equipped to handle or manage the process, and where the primary job of the judge is to ensure a fair hearing on all sides.  Delay and expense suit the bad guys.

The judges have compounded their error by micro-managing pretrial issues.  These send costs through the roof; that puts the law beyond the reach of most of us; and it produces generations of lawyers – and hence, judges – who don’t know how to run a common law trial. 

We are strangling our inheritance as we speak – including the most valuable part of that inheritance, trial by jury.  We are in the process of killing off a millennium of civil rights in one generation.

They did things differently and, in my view, better in Athens two thousand four hundred years ago.  This is from a book of mine, Parallel Trials (Amazon, 2013, Ch 8) – the trials of Socrates and Jesus of Nazareth.  This is on Athens:

Litigants had to represent themselves.  They could not get legal representation. The most that they could do was to get a speech writer to write their speech.  The accuser went first. Then came the defendant. Then the accuser again.  Then the defendant – who had the last word.  This gave the accuser a reply but the defendant the last word – in every case.  Each side presented their case in the form of a linear or continuous speech, with evidence being adduced where appropriate.  Strict time limits were enforced.  There were laws relating to witnesses’ testimony, oaths, contracts and evidence extracted under torture.  Written depositions precluded testing the testimony of those witnesses in court, but the law gave an action for false testimony….

At the end of the hearing, the judges (the jurors) queued to cast their vote.  There was no consultation or deliberation.  In cases of assessed penalties, each side submitted a penalty, and the judges selected one or the other – there was no middle ground.  This was a process thought to encourage intellectual honesty on each side.

If it matters, in thirty years of hearing cases, I applied time limits to both evidence giving and the making of submissions.  Some screamed like cut cats; I got sued now and then; but I never heard a litigant – at least not a bona fide litigant – complain.  And no case was ever on our list from go to woe for longer than six weeks.

3 Few counsel in civil cases can cross-examine now

This is the result of many factors that overlap.  It may be sufficient if I set out part of the paper I referred to above.

When I started in the law, the Xerox machine was becoming the golden goose.  Now it is the email machine that is the Crown High Prince of litigation.  With avalanches of documentation produced on discovery, witness statements, and written statements of the case, cross-examination is now as close to extinction as examination in chief.  I realised this some years ago while watching counsel in the Leveson inquiry in England put one document after another to the witness on live TV, and look especially pleased when he looked straight at the camera.  We might hope that his family enjoyed the show, because my revulsion led me to turn it off.  Whatever else it may have been, it was not cross-examination.  ‘You and I are going on a little journey, Sunshine, and we will wave under your nose every dirty bit of laundry and every silly or naughty thing you have ever said in the past until you give us what we want.  And no, my name is not George Orwell.’  It was like a lazy marriage of P T Barnum and Torquemada.

It is revolting in so many ways.  I was not much good at cross-examining, but at least I was brought up with authentic masters of the craft, like Neil McPhee, Jeff Sher, and Tom Hughes (and Tom was the most imposing of them all.)  They are all gone now.

Sir John Starke had a most fearful reputation as a cross-examiner, but I heard him say, on more than one occasion, and with conviction, that he felt relief if when he sat down, his case was not worse off. 

The problem now seems to be that counsel do not know when to sit down – or are just too scared to do just that.  This is in turn related to counsel’s lack of hard experience – the only source of learning for the practice of the law.  Too many barristers now have not been roughed up in lower courts.  They lack the courage to accept responsibility for the proper presentation of their case.  This goes to the heart of our many failings.  The first lesson of advocacy is – if you have a point, make it; otherwise, shut up.  And never take the shine off a good point by serving up a dud.  It is just so sad when counsel do just that to you.  Because they have never learned better.  And you have been let down yet again.

It is about a quarter of a century since I did a Summer School at Harvard on Class Actions.  The lecturer said so few got to trial, that lawyers did not know how to run them.  That is now happening here across the board – a least in civil actions.  And if you have not learned to be a barrister, you have not trained to be a judge.  And so it goes.

And I gather that our Supreme Court in Victoria is at last giving up on witness statements.  This led someone with a Federal Court practice to say that they had little experience with leading evidence viva voce.  How will it all end?   It is one thing not to be able to conduct a trial by jury.  It is altogether a different thing not to be able to present evidence.  Even if we have been killing all this off during my lifetime.

4 Failing to apply the law of evidence

The law of evidence is not hard to understand or apply.  The rules apply those of logic and fairness.  A question must relate to a matter in issue and it will not be allowed if it is unfair or will lead to the trial becoming unfair.  The judges have not enforced two rules and as a result what is described as ‘cross-examination’ has become a grotesquely protracted farce.

First, if a question does not relate to a fact in issue, but only to credit, counsel is bound by the answer.  The other party cannot call evidence to contradict that answer.  Otherwise, the whole trial is exposed to an infinite regress.  Every bunny must be chased down a hole.  You also see the delusion held by so many at the bar and bench that cross-examination is in some kind of no-fly zone for the laws of evidence.  There is a general miasma about this that is not the law. So, we have long invasions of private lives and long forgotten slips on the ether.  And no one who has experienced it would ever wish to go near a court again.

Secondly, the court must disallow a question put to a witness in cross-examination, or inform the witness that it need not be answered, if the court is of the opinion that the question is misleading or confusing; or is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive; or is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate (Commonwealth Evidence Act, 1995, s 41).  Here is no generous power.  Here is a very broad duty expressed in the imperative. 

So, after a while where counsel is slow and not scoring points, the judge must consider applying that law.  And if counsel is still probing after, say, an hour, it is time to intervene.  You start gently.  ‘How does any of this assist the court (or the process)?’  If an amber light is not sufficient, go straight to red.  The judge is there not just to give a fair hearing to the parties, but to act in the interests of those waiting to get on in the ever-lengthening lists of cases.  And the wording of the law shows that the duty of the judge is not contingent upon counsel calling on the judge for a ruling.

But we now see witnesses put to the test not just for hours but for days.  Is it possible to say that the judges are properly applying the law when witnesses get treated like this?  How many witnesses did not feel that their interrogation was annoying, harassing, intimidating, offensive, oppressive, humiliating, repetitive, belittling, insulting, or otherwise inappropriate?  In the name of Heaven, why not invoke the Bill of Rights, that is still part of our law?  It proscribes punishments that are ‘cruel or unusual’.  We could be going back 800 years to the medieval trial by ordeal. 

And how do you advise people about entering what Sir Owen Dixon called ‘the hall of justice,’ if part of the price is that you may have your dirty washing laid out in public while you are interrogated, if necessary, for days?  And the publications of your disclosures are protected by absolute privilege in court, and qualified privilege in the press?  So that when the washing is finished, you are left to hang out to dry.  And you may never be the same again.

When old-timers in the law like me see these trials go clean off the rails, we look at each other with wild surmise, and we wonder if the trial is unfair and therefore unlawful.

5 The decline of trial by jury

The Federal Court was not set up to conduct common law trials by jury, and so far as I am aware, it has never conducted one.  For whatever reason, that is not their schtick. 

But defamation trials had always been thought best dealt with by a jury.  So much of them depends on views about current community opinion and assessing the credit of witnesses.  Sensible judges brought up in the common law are so grateful that they can put these issues before you and me.  The law used to speak of a party putting himself on his country.

It is simple enough.  We elect groups of people to make laws.  And we appoint groups of people to decide how those laws apply to cases that turn on evidence that they assess.  And all this is fundamental to our understanding of the rule of law.  The jury after all did come before Magna Carta.

Let us look at a libel trial in London when I was starting at university.  A Polish doctor named Dering sued the author Leon Uris over a passage in the novel Exodus.  The passage in the book sued upon referred to a German doctor at Auschwitz using ‘women as guinea-pigs’ and said that Dering, the name being spelt wrongly, had ‘performed seventeen thousand experiments in surgery without anaesthetic.’  The action became a de facto war crimes trial that gripped the nation and the international press.  (I take all this from Auschwitz in England, MacGibbon and Kee, 1965.  Lord Denning wrote the Foreword.)

The writ issued in December 1962.  The Statement of Claim covered a couple of pages.  So did the Defence delivered in February 1963.  But the details of the plea of truth – ‘particulars of justification’ in the jargon – cover about three pages in the book about the trial. 

The publishers admitted the publication, and that it was defamatory, but said that with some exceptions, what was said of Dering in one short paragraph in a long novel was true.  They gave details which had to be supplemented when further evidence, including a vital hospital register, was uncovered.  (The ruling on that issue is reported.)

The case came on for hearing before a London jury in April 1964.  The trial ran for 18 sitting days.  That was then a very long trial in England.  No witness gave evidence in English except for four English expert witnesses.  There were problems with the interpreters.  As I recall it, counsel apologised to the jury for the length of the trial.

The summing up of the judge took five hours.  The jury came back in less than three hours with a derisory verdict for the plaintiff of a ha’penny. 

There was then an argument about costs because of the lowness of that amount, and a prior offer of settlement by a payment into court.  That was of course determined on the spot in one of the two reported rulings of one or two pages.  The trial was over.  Judgment was entered a little over a day after the conclusion of the evidence and addresses to the jury.  The judge was empanelling a jury in the next case in his list when the jury returned.  He interrupted to give his rulings and then went about his business ( and the next plaintiff had a win).

Compare that to the case here of the VC winner found by a judge to have committed war crimes.  I will not rehearse the issues, and I will leave to God the question of whether they are graver than those in Dering v Uris.  But what I might call the house-keeping details are horrifying in themselves.  I was told the following.  The Statement of Claim runs for 136 pages.  The Defence was only 27 pages.  53 witness statements were filed.  Forty witnesses were called.  There were 38 interim decisions.  The trial ran for 110 sitting days.  That’s six times the length of Dering v Uris.  The media put a figure of $25,000,000 for costs all up.  The judgment was vast in length.  That kind of forensic carnage mirrors the military horror seen in All Quiet on the Western Front.

Then there was the quagmire of Lehrmann and Higgins.  That case ruined the reputation of anyone who came near it, including that of the court, with a sordid soap opera that challenged Days of Our Lives in its relentless pursuit of banality – with a seedy two-day encore on an issue of credit.  Then the judge spent a morning reading a summary of a judgment of 340 pages.  It had become an inquisition into the working of the Australian press.  (It reminded old-timers of the old days when the Australian Broadcasting Tribunal thought it was being run by the Federal Court.)  Then the judge called for the transcript of remarks made by a lawyer for a party to the press.  Well, at least this form of Big Brother does not come out in Ermine.  But this kind of three ring circus is bad for all of us.  And as we speak, the appeal is still being considered – something that all counsel in Dering were so openly determined to avoid.

And all this is ruinous for the standing of our judges in our community.  As I read the judgment in another cause celebre, the judge spent about seventy pages on the evidence of one witness.

Well – there you have five reasons why I think our libel actions have become unmanageable.  We need to work on all five if we are to recover.  

And that is before we get to the subject of appeals.  They hardly bear thinking of in this context, and we must bear steadily in mind that irrespective of the result, any appeal is a confession of failure.  It prolongs the agony, and emphasises the chanciness of it all.  Litigation is, after all, a licensed lottery.

We also need to look at reviving the law about maintenance in litigation.  As I understand our common law, an unwarranted intervention in litigation to cause strife was both a civil wrong and a criminal offence.  A least, that was the view of Sir Carleton Allen.

It is, however, still the law that anybody who, without any of the various excuses, which are now well recognised, maintains another in his suit, whether as a mere busybody or financial gain, is liable to criminal penalties; and, according to the better opinion, it does not matter whether the suit, plaint or defence, which he unwarrantably maintains, is successful or unsuccessful.  (The Queen’s Peace, Stevens & Sons, 1953, 57.)

As matters stand, it looks to me that you or I could be bankrupted if we got sued for libel by man of straw whose only asset was the readiness of a dark agent to back him for that purpose.  No law should allow that.

It was my privilege more than half a century ago to have served as associate to Mr Justice T W Smith on the Victorian Supreme Court.  He was regarded as the preeminent judge in his time.  He was an equity lawyer who oozed respect for the jury.  In that respect, he was like Sir Owen Dixon.  The directions of Smith, J to the jury in murder cases are still cited as the law.  He wrote his judgments with a dip pen at a stand-up desk. .  That was, I suppose, some disincentive to going in for the endless footnoted tracts that we get clobbered with today.  He would not have comprehended judges taking time off to write judgments – not least when a jury can come back in a day or so with a verdict that people can understand.

Had I been able to put the work in this note to His Honour, he would have looked at it and me with complete despair.

Nothing beside remains.  Round the decay

Of that colossal Wreck, boundless and bare

The lone and level sands stretch far away.

Doubtless many out there will be as appalled as I am about how the members of the Writers’ Guild – my term – club together to write bullshit blurbs for each other’s books.  I got a cracker the other day.  A C Grayling is an English philosopher who will write about anything at the drop of a hat.  He has written a book Philosophy and Life.  Since I have written about this, believing that the philosophy taught  at our universities is practically useless, I picked the book up. 

Here were the standard blurbs.  One stood out:

Grayling’s intimate and vital dialogue with many of the greatest thinkers since antiquity will inspire each of us to discover the best life we are capable of living.

This is the very ecstasy of bullshit – ‘Simon May, author of Love: A History.’

So, I buy a copy of the book with little hope and great foreboding.    It is about the Socratic Question: ‘What sort of person should I be?’  Any ‘reflective person,’ we are told, will pause and ask what really matters.  Hmmm….On page seven: ‘The word I will use to capture this net of currently prevailing social sentiment, opinion, custom, tradition and expectation is ‘normativity.’’  The foreboding is turning into despair.  Then on page fifteen: ‘In considering who we are, we have to take into account the related questions of intersectionality and positionality.’ 

Well, there goes my $28.  By page fifteen.  I should have known better.  Divide the world in two.  Those who have majored in philosophy at university – including me – and those who have not.  The former recognises this as bullshit immediately; the latter just gives up, and goes back to celebrating the mystère of  the rugby league of Melbourne Storm (who just lost a Grand Final). 

And that would be just as well.  By page 315, we get:

A reading of Dewey and Heidegger, and a grasp of the implications of Wittgenstein’s ‘private language argument’ for the Cartesian tradition in epistemology, are healthy correctives when one is tempted to wonder if a subjectively idealist epistemological solipsism might be true.

So, I look up Simon May in the Index.  Voilà!  Simon gets the Rolls Royce treatment for his thoughts on ‘love’ over  nearly two pages.

The point is well made….And then May points out how disastrously high this raises expectations: no imperfect mortal can provide what a divine lover offers.  Being loved by God gives the beloved a home in the universe,  a guarantee of existential safety, which May calls ‘ontological rootedness’….

There it all is – red-handed. 

So, next time you run into a philosopher, ask them how long it has been since they felt ontologically rooted.

For centuries, Oxbridge taught – no, it preached – that ancient Greece and Rome were civilised.  For Shakespeare, that notion was as daft as saying that the Middle Ages gave us chivalry.  His Rome in Titus Andronicus, a violent early tragedy, was ‘a wilderness of tigers’.  Yes, but tigers do not kill cruelly, or for the sake of it.  The Romans do in this play.  They are no better than the barbarian Goths they looked  down on.  Elsewhere, I set out my views on this play, which I admire.  Its tone is set by the opening citation set out below.

At a summer school at Cambridge, my history tutor said he was glad I was taken by Carlisle, The French Revolution.  ‘Treat it just like  an epic poem or opera.’  Spot on.  Last night I watched the Julie Taymor movie again for the first time in many years – after I gave away my book and film libraries. 

I had forgotten just how gutsy this whole project was.  It grabs you by the throat from the very start – and does not let go.  It is like a dream sequence, and the themes crash and swirl like the last movement of Tchaikovsky’s fifth.  Or the finale of Anna Karenina danced by Plisetskaya, or the medieval fantasy of the ballet The Hunchback of Notre Dame.  It is a work of art that defies being boxed in. 

In accordance with procedures laid down, the critics did not understand it, and it bombed at the box office.  We tend to be scared of people of great talent who challenge us.

My views about it are as below.  I had forgotten the intriguing beginning, but not the end.  Nor would most of the crowd who saw it with me at the Longford when it came out.  It is so ‘in your face’ that I kept sensing commedia del’ arte – which is my trigger for high theatre.  I was inclined to the view that Saturninus was overdone, but then I found myself looking at Adolf Hitler in drag.  Some of the latterday Rome sets reminded me of de Chirico, who had such an influence on Jeffrey Smart.  Titus (Hopkins) in the bath was a direct take of Marat, by David, in the French Revolution.  And the following scenes, including my favourite stage direction, certainly held the complete attention of the audience, who were left in quiet wonderment at the end, and gasping for the daylight.

As it happens, I had just been reading up on Jonathan Bate, who now stands as high for me in the pantheon as Tony Tanner.  In Mad About Shakespeare (2022), Bate said he was a ‘huge admirer’ of the play.  ‘For me, Titus was not a self-indulgent spectacle of barbarism, but a profound meditation on how human beings cope, or fail to cope, with extreme suffering.’  God knows we need all of that in October, 2024.  Bate redid the Arden version and said that his edition, and a recent version of the play, and ‘Julie Taymor’s film with Anthony Hopkins in the lead role…helped to rehabilitate it by taking its emotional range, its wit and its stagecraft  seriously.’

This play states my living nightmare – that we are all just like Hottentots treading blindly around the rim of an active volcano, and God knows which of us will fall in.  It teaches us that all of us have a capacity for evil, and that the most dangerous among us are those who have God on their side – not least when they are opposed  by people who have God on their side.

The Taymor film may well be as engaging as any production I have seen of Shakespeare  – with the possible exception of Richard Burton’s Hamlet in New York.  There the audience erupted with relief at the comic parts.  Here the audience is in it up to its neck from the start – especially as we realise that we are in the hands of a consummate director.  And we wind up with a  sense of grotesque annihilation that is different to what we get with King Lear.  The grotesque on stage matches the grotesque in life.

Which is just another reason why it is not a good idea to second guess this playwright.

*

BOOK EXTRACT

TITUS ANDRONICUS A WILDERNESS OF TIGERS

…why should nature build so foul a den

 Unless the gods delight in tragedies?
(Marcus, Brother of Titus Andronicus)

Since in our fonder moments, we believe that our civilisation derives from ancient Athens and ancient Rome, we want to believe and we do believe that they were civilised. Neither was. Each sustained itself on slavery and empire; each practised cruelty and destruction on the subjects of its empire, and on its own citizens as required; each subscribed to a religion of many gods based on sacrifice, ritual and superstition that has no adherents in any place in the world now; neither city, at the time we are talking of, had received the Mosaic Law, much less the Sermon on the Mount.

These facts, which are not in dispute, mean that we cannot begin to refer to ancient Athens or ancient Rome as civilised – no matter what else they may have achieved in letters, the arts, or law. Some very small number of the citizens of either, a privileged elite, may have been able to enjoy the rudiments of what we call a civilised life, but only the more blind of our own privileged elites could say that Athens or Rome was civilised.

Rome had a particular problem. It ruled a mighty empire but was unable to rule itself. It had no constitution that prescribed the appointment or powers of its Emperors. This was a lottery conducted by the army. It was as if the Reich had been sustained, and would probably have produced a Fuehrer as required on appointment by the SS. For a long time in Rome the equivalent of the SS was the Praetorian Guard.

At the start of Titus Andronicus, Titus returns from many years at war with the Goths. There is a bad dispute over who will now be Emperor. First, Titus sacrifices a son of Tamora, the Queen of the Goths, to propitiate the shades of those sons of his and Rome that have died during the wars. She and her sons vow revenge. Then Titus refuses the purple and anoints the evil Saturninus as the new Emperor. Saturninus says he will marry Lavinia, the daughter of Titus. When she says that she is committed, Saturninus marries Tamora instead.

The hard fate of Titus is therefore sealed. Two sons of Tamora rape and mutilate Lavinia and murder a brother of the new Emperor, and get two sons of Titus convicted for that murder. In his extremity of grief Titus appears to go mad, but after Lavinia reveals who mutilated her, Titus is able to be revenged on all of them. He, naturally, dies in the process. The play was advertised as a Roman Tragedy.

This, then, is a very bloody melodrama. But it is not as comically graphic as the gruesome and inane work of Quentin Tarantino, and it was written by a playwright named William Shakespeare. The plot also has Aaron, a black lover of Tamora, an elementally evil man who prefigures Iago (in Othello). Titus himself prefigures King Lear – he is an aging authority given to ungovernable anger and wild folly as he declines in both age and power – and Othello
– he is a soldier much better in battle than in the corridors of power at Rome – and Hamlet – he is a man bent on revenge and takes cover behind madness for that purpose.

In the course of this play, any veneer of civilisation that Rome may have claimed is stripped away. Anyone who has read Suetonius’ The Lives of the Caesars, or The Decline and Fall of the Roman Empire by Edward Gibbon, will know that the failure of governance and the appalling crimes referred to in this play, were all quite mainstream. The Romans, like the Greeks, referred to outsiders as ‘barbarians’. Both those ancient powers fell to ‘barbarians’. The Goths were of course ‘barbarians’, but when Titus says that a Goth must be sacrificed for the shades of his sons, a barbarian son of Tamora says, with complete justice:

Was never Scythia half so barbarous. (1.1.131)

When Lucius complains of banishment from Rome, Titus says:
Why, foolish Lucius, dost thou not perceive
That Rome is but a wilderness of tigers?
Tigers must prey, and Rome affords no prey
But mine and mine. How happy art thou then,
From these devourers to be banish’ed! (3.1.53-57)

The forest is twice identified as being a place fit for rape and villainy (2.1.116 and 4.1.58). The brother of Titus is led to say:
O, why should nature build so foul a den,
Unless the gods delight in tragedies? (4.1.59-60)

The evil capacity of the forest stands for the evil capacity of Rome itself. The mutilated form of the innocent Lavinia stands for what Rome can do to the innocent at large.

The action has its dry moments, especially those involving the evil Aaron. When one of Tamora’s sons says ‘Thou hast undone our mother’, Aaron coolly replies, ‘Villain, I have done thy mother’ (4.2.76). But for the most part, the writing is a kind of epic melodrama. Since there is a critical consensus that this play is not all that good, we might set out at length some of the poetry in which Titus reflects on his tragedy.

For now I stand as one upon a rock,
Environ’d with a wilderness of sea
Who marks the waxing tide grow wave by wave,
Expecting ever when some envious surge
Will in its brinish bowels swallow him.
This way to death my wretched sons are gone,
Here stand my other son, a banished man,
And here my brother weeping at my woes:
But that which gives my soul the greatest spurn
Is dear Lavinia, dearer than my soul.
Had I but seen thy picture in this plight,
It would have maddened me: what shall I do
Now I behold thy lively body so?
Thou hast no hands to wipe away thy tears,
Nor tongue to tell me who hath martr’ed thee.
…
Gentle Lavinia, let me kiss thy lips,
Or make some sign how I may do thee ease.
Shall thy good uncle, and thy brother Lucius,
And thou, and I, sit round about some fountain,
Looking all downwards, to behold our cheeks

How they are stained, like meadows yet not dry
With miry slime left on them by a flood?
And in the fountain shall we gaze so long
Till the fresh taste be taken up from that clearness,
And made a brine-pit with our bitter tears?
Or shall we cut away our hands, like thine?
Or shall we bite our tongues, and in dumb shows
Pass the remainder of our hateful days?
What shall we do? Let us, that have our tongues
Plot some device of further misery,
To make us wondered at in time to come. (3.1.93-107 & 120-135)

There are two reasons why I am very fond of this play, which in my view is a great play. The first is that it is a theatrical demolition of the notion that the ancients were civilised, and a reminder of how little there is that separates us from the jungle. We might perhaps add that the historians say that Rome did not practise human sacrifice as such, but the adherents of at least one faith might take the view that such a proposition can only be contained by a very narrow interpretation of the word ‘sacrifice’.

The second reason is that we owe a very great debt to Julie Taymor. Before she directed the film Titus, her only credit was Lion King on Broadway. This is a wonderful film. It is a beautifully executed presentation on the screen of a play that it is very hard properly to put on the stage. Titus Andronicus may be one of those plays which is best seen on the screen above any other form of reproduction.

The film is brilliantly set and choreographed. Anthony Hopkins and Jessica Lange are the leads. The supreme Geraldine McEwen has a small part that finds the wrong end of a billiard cue. While the sources are Roman, this film comes across as the archetypal Greek tragedy of a cursed house. Hopkins is perfect as the square-jawed servant of public duty. Jessica Lange still conveys that sexy fatality. As the play is developed in the film, it could be at the root of the great Westerns. Most of the show is about how bad the bad guys are, so that when their dispatch comes at the end, the sense of relief is complete. This is the revenge show of all revenge shows.

The play culminates in Act 5, scene 2. This is well done – and brilliantly done in the film. It is very high theatre. It is a kind of noir (or Negri) commedia dell-arte. Titus has been firing arrows with messages tied around them, into the heavens. But so that they land near the emperor. He and Tamora are convinced Titus is mad. Tamora calls on him in that belief to trick him into handing over the son of his who is marching against them. She calls on Titus in the form of the character Revenge. She says her two sons are Rape and Murder. The mad hero comments twice on how much they look like the sons of the Queen of the Goths. He is not duped. The irony is dripping. Tamora is tricked into entrusting her sons to Titus. He tells them that when he has killed them, they will be reduced to the makings of a pie for their mother. If you see this film at a cinema the patrons tend to get audibly squeamish when the next scene opens with Anthony Hopkins with a cheesy grin and a chef’s hat. The stage direction reads Enter Titus like a cook, placing the meat on the table. (In one CD, someone rings a tasteful dinner bell.) Titus wrings the neck of his daughter Lavinia. Why? She has been defiled. By whom? Your sons. Arrest them. They are already here in the pie that you are eating. This is followed by what Manning Clark called uproar (in the play it is a great tumult). People get stabbed all over the place, there is an operatic pile of corpses, then order is restored and there is a new beginning.

We have never been able to joke about rape and the treatment of Lavinia may be much more difficult for directors and audiences now than it was four hundred years ago. But it is very properly done in this production, and just takes its part with the other sad cruelties as part of the strangulated poetry of an ancient barbaric cycle.

Just who is civilised and who is barbaric depends on from which side you are looking. It is much the same with revenge– just who is revenging whom depends on what part of the cycle you come in at. Unless the family of Titus has extinguished the line of Tamora– which we are inclined to call ethnic cleansing now – the cycle of the blood feud will go on. It was the first function of our ancient laws to put an end to the blood feud. It does not look good for the people of Rome at the end of this play. The dead Tamora is to be thrown ‘forth to birds and beasts of prey’ (5.3.198), but the film concludes with the half-caste bastard child being carried into the future, the reverse of the revolting sacrifice of a child on which this awful cycle began. The symmetry is almost fearful.

Another footy season gone.  Another Brownlow and another Grand Final.  They often prompt discussion about who was the ‘best’ player.

I cannot recall anyone setting out criteria for what constitutes the ‘best’ player in a given game or at a given time.  (And I put to one side the addition for the Brownlow of ‘and fairest’ – and what I regard as the primitive rule that you are disqualified automatically if you get suspended.)

I suspect that the simplest criterion of best (on ground) is ‘eye-catching.’  If I am right, that is wrong. 

Football is a team game.  The object of each team is to beat the other.  The ‘best’ player should therefore be the member of the team who contributes most toward the objective of their team’s finishing ahead of the other.  And on a rational assessment, that may not be the player who catches the eye, or figures in the most memorable parts of the game. 

Take some examples.  Footballers like Hart, Ablett, and Carey were known potential Grand Final winners.  Someone who effectively stopped one doing just that may have contributed most to his team’s win even if he did not get one kick.  A winger in rugby may score the only three tries in a winning score, but all he may have done is to finish off the hard or brilliant work of all his team mates, some of whom have contributed far more to the win.  Alternatively, someone like Barassi could turn the game, and deflate the opposition, in just one or two passages of play – and effectively be the match-winner although otherwise quiet all day.  (Think of Shane Warne.  Or Petracca in 2021.)

It is notorious now that some players are much better placed to catch the eye of umpires or critics than others.  There was obviously a choice to be made on Saturday between Ashcroft and Neale, who both deserved an award, but as I saw the game, a Lions’ defender, Starcevic, did not put a foot wrong.  He not only beat a dangerous opponent, and stood like the Rock of Gibraltar, but he delivered the ball upfield with apparent nonchalant composure.  He was a great contributor to the winning of the flag, but he had zero chance of winning his own prize.  (The Lions’ full back may have had a reasonable game – according to the commentary, his opponent got his first kick late in the last quarter.)

We may therefore want to think of the extent to which the ‘best’ means ‘the most valuable.’

There is another flaw in our thinking of this process.  The ‘best’ is most often awarded to someone on the winning side.  There is no reason in logic why this should be so.  It is what is called a non sequitur – the conclusion does not follow from the premises  But it is so hard to escape.  The eighteen Age experts were about evenly split on who would win, and I think the biggest margin was estimated at 17 points – no-one predicted a ten-goal thrashing easing off at the end – but they were unanimous in saying that the best would have to come from the winning side.

That is I think irrational.  As a friend, who played in many premiership wins said, the result is ‘illogical and ridiculous….On that basis,  Bob Skilton couldn’t have won one Brownlow, let alone three’.

And it gets worse when the result is close.  Like last year – less than a goal the difference.  I am not a statistician, but a scoreline difference of less than one goal, say 95 to 100 – last year it was 90 to 86 – is hardly the basis for a finding that one side played better football than the other and deserved to win.  Rather, it is a question of who was standing where on the carousel when the music stopped.  Let us put to one side – as I am told I should – issues of statistical significance, if you rolled the same dice in seven days’ time, anything could happen.  (It is of course a fallacy to hold that if you have thrown five tails in a row, the odds shift in favour of heads for the next throw.  It is a fallacy – but we feel drawn to it by something like gravitational pull.)

But as often as not, we will be offered statistical analysis put forward with a straight face saying why one side played better than the other, and ran out deserving the win.  When the result could just as easily have gone the other way if one out of one hundred kicks had deviated by six inches.  But on we go with charts and graphs and arrows and replays – which establish one fundamental proposition.  And that is that if my aunt had wheels, she would be a bike.

In sport, as in war, there is such a thing as chance.  And we might all bear in mind the observation of His Grace, the Duke of Wellington, that the business of war, and indeed the business of life, is to guess what is on the other side of the hill.

And that is another problem with these analysts and star-gazers.  They are big on showing in black and white how a game unfolded as it did, but not why.  I have read column after column on how the Swans fell so low, but no-one has got close to showing why.  And at the end of it all, they had the look of blank horror and incomprehension of those coming back from the Somme.

Perhaps it is just an essential part of the drama of it all that in sport, as in life, things happen that we simply do not understand.  As Wittgenstein remarked, possibly of a more elevated issue, ‘Whereof you cannot speak,  you must be silent.’

The other day, I put out a note on the book The Cruel Sea.  Last night I watched the movie again – for the first time in half a century.  It is a superb adaptation of a great book – about something we must never forget.  It is very moving – often painfully so – and delivered by a cast that included those who would go on to great careers on the stage doing Shakespeare, Ibsen and Chekhov.

But from the very first shot, and the voice over of Jack Hawkins, I was seized by a sense of déjà vu.  This seventy-year-old movie was all about our lost innocence.  Unerringly so.  Back to 1953 and 24 Rosedale Road and Glen Iris State School.  No television.  Up to the Civic in Ashburton for the flicks.  And the newsreel and Hopalong Cassidy.  You could walk to school and play cricket in the middle of the road from a very young age.  Mac and Norma did not even have a car when we moved in.  I can distinctly recall seeing Mac turn the little pale grey Ford Anglia into our street for the first time.

And we had our heroes.  This film shows just how England – I should say Great Britain – won the war.  By spellbinding courage and determination of all the people, all classes of which are so movingly displayed in this wonderfully edited film.  And in other movies like The Dambusters – which Grandfather Les took me to see at Hampton – three times.  (Why not?  Three Australians hit their targets – and one got to say ‘bloody’ on the big screen!)

Then over time, the place of these heroes of a just war we had not sought but could not lose was taken by sports heroes.  War was tainted by the lies and crimes of Vietnam, and later Iraq and Afghanistan.  And no government can commit a worse crime than to send its young men to die in a war entered into on a lie.  (And that comes from someone who was balloted out of the Vietnam draft.  Our government used a lottery to select our young men to be killed in war.)

Then those who had survived the war of those great movies got snaky with those who came back from Vietnam – and I am told that some of those now get snaky with those coming back from the Middle East.  The logic is as appalling as the simple want of human decency.  Our treatment of those who come back from wars not covered in vine leaves is a massive stain on this immature nation’s short history among white people.

My namesake got the VC for the raid on the dams, and I went to Holland to mourn at his grave.  Now our VC winner has been bankrolled by a deluded mogul to show himself as a murderous fraud in the cesspit of a Federal Court libel action.

And for some time now, our major sports have had to live as part of the entertainment industry that depends on television ratings – so that we have to fight to keep sacred the ritual of the AFL Grand Final being played at the time it has always been played at – in the bloody afternoon.  (The shift to evenings during the season put me off.  We Demons went to the MCG after lunch at the Prince Alfred – later saying that our only mistake was to leave the pub, because we usually got bashed up at the footy.)

And now we are choking under the evil of gaming and the dreadful cowardice of our governments and complicity of the screamingly well-paid sports administrators, who amble happily between the nation’s finest and the gutter.

Where, then, does that leave those who were my age when The Cruel Sea came out when they look to find their heroes?  Tina Turner notwithstanding, we need all the heroes we can find.  But, I gather, the first thing we must try to do is to save these children from the curse of their own reclusive virtual unreality.  That is a trap and vice my generation never had to face, and my mind misgives about what may happen next.  People who are clever are so often so dangerous.

But the Grand Final is at hand, and that is as close as you can get to a sacred day in Melbourne.  It is one of those big days – journées – of this city – which happens to be my home.  We have not yet lost our battle for sport, and I am fairly confident that we will overcome the forces of darkness.  What follows is a celebration of our Australian sports that you may have seen before, and which is part of a book I shall shortly submit for publication

Carpe diem!

We that are old had the best of it.

Extract from The Pursuit of Happiness.

For the rest – for those of us who are left to grow old – we have the memory of those afternoons when the autumn leaves were falling and being burnt in the gutters, and this of itself brought out the smell of eucalypt and liniment – and the smell of white paint on freshly cut grass – and the sight of those stocky fifties’ men breaking through the streamers, spitting on their hands, and waiting to play their part in this great celebration of ritual at this peculiar and monstrous temple of theirs that some call the Shrine.  Real Anzacs – Brylcream, basin-cuts, jock-straps, and all – but less tats back then. 

You could just about smell the bloody game – and the Foster’s, and the Four ‘n Twenties, and the Rosella tomato sauce.  (You got the full whack of Rosella on the train into the MCG between South Yarra and Richmond.)  You wore black nicks at home and white away; both had buckles, and the boots had stops and ankle covers (what a thrill for a boy to get his first pair); anyone who suggested that you could change the colours of the jumper was a dangerous lunatic and possibly a communist, or otherwise most dubiously pink.  All men and boys on both sides of the fence were equal for the cherished time allowed to them in that heaving, manly bubble.  The boys would grow to manhood in the shadow of their heroes, a Saturday arvo rite of passage.

It was a time when every second kid at the Glen Iris State School wore an Essendon jumper with number 10 on his back, and when enlightened parents took their kids to the Lightning Premiership so that they could tell their grandchildren that they had seen the great John Coleman.  (He is not now celebrated enough – he kicked twelve goals on debut.)  My folks took me one year – about 1953, I suppose – and Coleman marked about forty yards from me.  Kids don’t forget that kind of thing.  Coleman was up there with Phar Lap.

It was a time – 1956? – when a ten-year-old kid at a Grand Final with more than 100,000 there at the MCG would be terrified by being carried off his feet under the parapet at the old scoreboard, and a big, kind man would lean over, and reach down, and just reef the poor little bugger (me) out of the heaving mob. 

It was a time when you got used to being hoarse after the first couple of matches, but when number 31 for the Redlegs (Barassi) obviously sat on the right-hand side of God, or at least was proof positive that God exists.  And even the down sides had champions – like Peter Box at Footscray or Freddie Goldsmith at South (both won Brownlow Medals).

You kicked a paper footy where immortal giants had just been, and you went home knowing that God was in his heaven to listen to Chicken, Butch and the Baron on the Pelaco Inquest and the London Stores show.  And if you had won, you might just shout yourself a Pink Comic (the Sporting Globe) to celebrate.  And on the Monday, you could start getting ready for the next round. 

And then there was TV and then there was World of Sport – and the Sunday roast after the lawns were mowed.  Bliss, pure bliss.  And then there was the VFA of the day, and you would ring up at half time demanding to know when the fights would start.  (And on a bad day, the Channel 7 switchboard lady might query your sobriety.)

And in spring, you would climb those same stairs in the old Southern Stand at the MCG , and gaze on a completely different arena – a vast see of green peopled only by thirteen men in cream.  A different crowd in a different ground – but Boxing Day would bring the grudge match against the convicts (New South Wales) – and when Gordon Rorke bowled the first ball, the bloke who had brought you, a mate of your old man, stood up and informed the whole bloody crowd: ‘That bloody Irish bastard throws the bloody ball.’  (For a lay preacher and a judge’s associate, his language was a bit rough.  I just wanted to hide.)

And could anything ever compete with Lillee and Thompson serving it right up to the Poms at Melbourne’s other shrine?

All these vast public displays of fervid history form part of the character – the fibre if you like – of the City of Melbourne.

And outside of cricket and footy, you had Laver, Landy, Thompson, Rose, Brabham, and Carruthers.  You took it for granted that God’s country would give the world the best – and you felt desperately sorry for all those poor bastards overseas who would never even get to see the great Ronald Dale Barassi.

And what about those dreary days at Kardinia Park with the flat hats; and those days at Arden Street or the Junction Oval, when you bent your heads backwards all day to watch bombs from Glendinning or Super-boot fly over?  Or that day at Coburg – Coburg! – the end of the world was nigh! – when Phil Gibbs asked you on camera about the sacking of Norm Smith – and you were still getting over the Grand Final and the Frog’s response to Gabo’s two goals that had nearly landed in your lap?  And even the Zog – my mum, Norma – was stressed, although more decent than you or Wally Burns had been in the standing area leading up the 1964 Grand Final.

Or that day in the fifties when you went to Windy Hill – that thrice blasted heath – with a mate, whose eye will no longer fall on this note, and his dad.  Close game.  Beckwith, as was his wont, kicked the ball out all day with impunity.  Right on the bell, a Bomber does the same – probably by accident.  Brrrrrring!  A portly little Hitler-bludger scurries in bumptiously and points to the spot in an imperious Baptist kind of way.  Athol Webb, number 15 – decoy full forward – goes back and coolly slots it from the boundary line about 55 yards out.  Demons home by two points.  Dies irae.  Dies bloody irae!  ‘Stow that bloody Demon scarf, Son, keep your eyes to the front, don’t make eye-contact – this could get very bloody ugly’.  I still recall the train trip south.  Fraught.  Tricky.  Tense.

Or that day about thirty years later at Windy Hill with another mate, whose eye will not now fall on this note either, when it was so cold out there that you could only survive death from exposure by drinking more beer, and when you are querying your sanity for even turning up for this Arctic agony, and the Bombers have a player whose name causes an underground Hottentot rumble whenever he goes near the ball, and you know that you are mad, stark raving crackers.  And you go home and turn on Churchill, or music for great things beaten – Jussi Björling and another in the duet Au fond du temple saint – and your mate – your Anglo-Saxon mate, who was a rower – is just bawling his bloody eyes out! 

Or that sacred day of days at the Western Oval.  1987.  Oh, blessed time!  Hawthorn has to beat Geelong and the Dees have to beat the Doggies in the last game for us to be in the finals for the first time in 23 years.  We are losing both, and we are begging the Dogs to end it quickly – like a vet giving a dog the green dream.  Then number 2 (Flower) rose again; Dunstall put the Hawks up, and after an agony we are crying in our beer at Young and Jackson’s.  You take your girls to the Demons’ training, and they ask why are you crying again?  It has been a bloody long time between drinks, Girls, a bloody long time. 

And then we hand out lacings to North and South.  And then nemesis strikes!  We have beaten Hawthorn in a brutally tough Prelim at that human graveyard near Woop Woop.  Then the late Jim Stynes walks over the mark, and one of those inane crypto-fascist clowns commits the greatest war crime of all, and he hands the cherry to the only bastard on the planet who could slot it from there.  Condign revenge for that sausage roll so long ago by Athol Webb, the decoy full forward, out there on the blasted heath occupied by the flying Baptists.

Ah, yes – what was the word for it all?  Innocence, the lost innocence of a found boyhood, a little mirror of life held up before our shining schoolboy faces.

And then at last came the final series in 2021.  A mate from school, Ross, and a mate from the Bar, Chris, had shared with me various parts of the agony since 1964.  We had seen Melbourne lose more games than some people have had hot dinners.  Chris was Christopher Dane, QC – the rower who had bawled over Jussi Björling.  He had been diagnosed with pancreatic cancer.  This was going to be his last Grand Final – if we made it.  The pandemic meant that the finals, including the Grand Final, were not played at the MCG.  Chris could have made it there – but not to Perth for the Grand Final.  Ross and I would have attended all finals here, but we could not bring ourselves to watch the games live on TV – if someone else emailed a score, we could discuss it by that medium, and return to our Trappist cells to suffer alone and in silence.  We knew Dane watched it live.  The three of us watched the Grand Final live on TV and kept in touch through the ether.  Chris Dane died not long afterwards.

Well, Mate, they did it for you – and you made it to see them do it.  This one is for you, Chris, and all our unshed tears. 

Your testament might be in the email you sent Ross and me during the second semi-final – ‘You may be safe to turn the TV on now – they’re ten goals up in the last bloody quarter.’

And since I wrote this, the guy who as a young boy was there at Essendon with his dad and me in the 50s has also left us.  You were a bloody good footballer, yourself, Alan.

There is one more thing to say about sport.  Most of it involves teams – people coming together to achieve a shared goal.  It requires teamwork – people playing not so much for themselves as the team.  That is precisely what we see so little of in public life now – in politics or business.  The best teams are those whose members enjoy playing in the team the members of which share confidence in each other.  And the result helps fill the void of ritual left after the departure of God.  Money is poisonous in so much of sport, but its role in our community gets larger over time.   That is certainly the case in my life.

Australians romance about the role of sport in their lives.  For me, sport can resemble litigation – the contest contains the drama.  But sport is more than drama.  It is a catharsis, and we get the thrill of the contest, the succour of a secular liturgy, a feeling of release, and, above all, that sense of community and belonging.  Communion.  And when we look back  on the decline in religion, the lapse in education, and the rape of technology, we need all the relief we can get.  And we must do all we can to rid it of the curse of gaming.  Obscene wealth is one thing.  Orchestrated and murderous predation is another.  We are guilty of a national failure from which many are dying.

PS

It might be said that Donald Sinden launched his great career by getting second billing in The Cruel Sea (although even I recall the name Mogambo).  When young, he had Cary Grant good looks.  You can catch an interview with him about this movie at an advanced age.  He had what was called negative buoyancy .  That was interesting – the whole movie involving the ship was shot at sea.  They even had people who had sailed in it serving as extras in the engine room. 

Sinden was wonderful in Shakespeare.  He was a natural.  He was happily married, but that did not preclude him from befriending Bosie.  Those English people from the West End have that boulevard savoir faire.  And they bat so deep.  It’s just as well the buggers never managed that in cricket.

It is not surprising that most comment on the war in Gaza is very emotional.  For many reasons, many if not most people will find it hard to be objective because of something in their upbringing or faith.  They will have a bias – or, if you prefer, a prejudice.  But, and this isn’t surprising either, very few of them will admit it.  That is not part of their upbringing or faith.

What is surprising is how often each side gets criticised for not talking about the weakness of the case of their side.  You see it all the time.  We saw it in response to what I thought was a very sensible address by Louise Adler.  She got criticised for not saying more for Isreal or more against Hamas.  And you very rarely see the diagnostician take their own medicine.

Imagine this at the footy with Storm v Eels or Carlton v Collinwood.  ‘OK, Comrade, you can say what you like about my lot, as long as you acknowledge that your lot are bludgers, urgers, hit-men, and downright fairies.’  And get ready for a very big dental bill.

It is one thing to say that the ABC, or anyone in journalism, should be ‘balanced’.   The position of the passing commentator is different.  And even the ABC would have a problem giving equal time to a serial liar and fantasist who trades on division in the community – like Donald Trump.

Even the law of defamation allows that we are likely to hold views strongly and express them on a partisan basis.  You do not lose your defence of fair comment because you show some prejudice.  In th name of Heaven, how many of us are free of prejudice?  This part of our law of defamation does not require you to jump the hurdle of reasonableness.

As matters stand, so much correspondence in the press about Gaza comes down to what eight-year-olds did behind the shelter shed at Glen Iris State School in 1953: ‘You started it’.  Or – ‘You were worse than me.’

That is neither surprising nor uplifting.

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.