OPINION
re: THE RE-INTRODUCTION OF THE “TWO COUNSEL” RULE

1.    By letter dated 18 September 2007, the President of the Bar Association of Queensland (“the Association”) has sought our opinion on the following issues:

a) by what means could the “two counsel rule” be re-introduced in a way that would effectively bind Senior Counsel practising in Queensland? In particular, would this require an amendment to the Barristers Rule 2007 (“the Barristers Rule”) for it to be effective?; and

b) would the re-introduction of the two counsel rule (in a binding form, or in the form of an “aspirational statement” as one of the criteria for appointment), or attempts to enforce it, conflict with other legislation, including Part IV of the Trade Practices Act 1974 (Cth) (“the TPA”) or the Competition Code of Queensland enacted under the Competition Policy Reform (Queensland) Act 1996 (“the Competition Code”)? 

2.    By way of background, the above letter states that:

 “The Council is in the process of considering whether the protocol for the appointment of Senior Counsel might usefully be reviewed, including in any of the ways discussed in the “Report of the Sub-Committee Regarding the Review of the Protocol for the Appointment of Senior Counsel” and the “Minority Report of the Sub-Committee Regarding the Review of the Protocol for the Appointment of Senior Counsel”.

In that context, one issue that has been raised is whether the “two counsel rule”, or some form of it, should be re-introduced. In that respect, two possibilities are mentioned in those reports, namely:

a) An “aspirational statement” in the criteria for appointment of senior counsel.

b) Alternatively, the re-introduction of the “two counsel rule” in a way  that binds Senior Counsel practising in Queensland. (It is suggested in the “Minority Report” mentioned above that this should be by an amendment to the Barristers Rule 2004 (since replaced by the Barristers Rule 2007).”
 

3.    Prior to its abolition, the two counsel rule provided as follows:

4.    At a special general meeting of the Council of the Association on 17 September 1991, the above rule was replaced with the following:

5.    There is no equivalent to the above provision in the Barristers’ Rule.  Rule 88 provides that:  

Making the rule binding on Senior Counsel in Queensland

6.    The Barristers Rule is binding in Queensland on legal practitioners in the State, including senior counsel.¹ Subject to any inconsistency with State or Federal legislation, the introduction of the two counsel rule by way of an amendment to the Barristers Rule would bind senior counsel in Queensland.

7.    Any non-statutory alternative would run the risk of being inconsistent with the Barristers Rule.  We say this because rule 89 obliges barristers to accept briefs offered by solicitors, subject to certain limited exceptions.  Rule 89 provides that:

8.    None of the exceptions to the “cab rank” rule expressly refers to the absence of a junior counsel.  Rule 97(g) provides that a senior counsel may refuse a brief on the grounds that, in the barrister’s opinion, the brief does not require the services of a senior counsel.  Although senior counsel may consider that a brief requiring the services of only one counsel is not a brief requiring the services of a senior counsel, this is not a view expressed in the language of the Barristers Rule itself.  Instead, the structure is that the “cab rank” rule requires that a brief be accepted, subject to the usual exceptions, including that a senior counsel may decline a brief to appear without a junior.  That is not the same thing as a rule prohibiting a senior counsel from appearing without a junior, even if there are exceptions to the prohibition.  It may thus be thought that a two counsel rule not contained in the Barristers Rule would be inconsistent with the Barristers Rule and therefore of no effect in the face of the obligations under the Barristers Rule.

9.    We also note that implementing the two counsel rule by way of a regulation passed by the Association would not make it binding on non-members (such as interstate senior counsel), thereby offering non-members an advantage.  We do not consider it necessary to consider the validity of a constitutional provision of the Association adopting the two counsel rule as a matter of corporations law.

10.    Another important consideration is whether a two counsel rule would contravene provisions of the Competition Code or Part IV of the TPA.  This is because:

11.    It is, therefore, necessary to consider whether the two counsel rule contravenes a provision of Part IV of the TPA, or of the Competition Code.

The TPA

12.    Subject to certain exceptions,²  Part IV of the TPA applies to corporations, rather than natural persons.  Any consideration of the application of Part IV to the Association, and to individual members, is complicated by this fact.  However, the Competition Act applies the “Schedule version of Part IV” of the TPA³  (and the remaining provisions as they relate to that version), named the Competition Code, as a law of Queensland, applying to natural persons.  For this reason, we are of the opinion that it is unnecessary to separately consider the operation of the TPA.

The Competition Code

13.    References, in the following paragraphs, to various sections of the TPA, should therefore be taken to be references to the Schedule version of Part IV of the TPA or the remaining provisions that relate to the Schedule version.

Exclusionary provisions

14.    Section 4D of the TPA relevantly provides that:

“(1)    A provision of a contract, arrangement or understanding … shall be taken to be an exclusionary provision for the purposes of this Act if:

15.    Section 4D only applies to persons who are in competition with each other in relation to the supply of services to which the relevant provision relates.  In our opinion:
 

16.    With respect to “purpose”, s. 4F of the TPA relevantly provides that:  

17.    The purpose is the end sought to be achieved, rather than the reason for seeking that end.⁴    In our opinion, the end sought to be achieved by the two counsel rule is the prevention of senior counsel supplying services in the particular circumstances where they are briefed without a junior.

18.    However, we do not consider that the “particular persons or classes of persons” element of s. 4D(1)(b)(ii) is satisfied in the present case.  As Gleeson CJ stated in the News Ltd case:⁵

“The particularity of the persons or classes of persons who are the objects of the purpose defined by s 4D and proscribed by s 45 is essential to the concept of an exclusionary provision.”.

19.    In our opinion, the targets of the purpose of the two counsel rule are not particular persons or classes of persons.  Rather, the rule is concerned to prevent the supply of services by senior counsel (in particular circumstances) to anyone to whom such services may lawfully be provided.

20.    We are, therefore, of the opinion that the two counsel rule is not an exclusionary provision within the meaning of s. 45(1) or 45(2) of the Competition Code or TPA.

Third line forcing

21.    Section 47 of the Competition Code relevantly provides that:

22.    In our opinion:

23.    However, in our opinion, a condition that the recipient acquire services of a junior counsel is not a condition that the recipient acquire services from “another person”.  As Davies J stated in TPC v Tepeda Pty Ltd:⁶

24.    Given that junior counsel comprise the bulk of barristers in Queensland, we do not equate a requirement that some unspecified junior counsel be retained with a requirement that “another person” be retained.

25.    We are, therefore, of the opinion that the implementation of the two counsel rule would not breach s. 47 of the TPA.

Arrangements that restrict competition

26.    Section 45 of the Competition Code relevantly provides that:

27.    The implementation of the two counsel rule by means of an amendment to the Barristers Rule may arguably constitute a contract, arrangement or understanding for the purposes of s. 45, but we think it does not, because a statutory regulation is not within the ordinary meaning of that expression.  On the other hand, a regulation of the Association alone would probably do so.  In Dunn v Australian Society of Certified Practising Accountants,7  Whitlam J appeared to accept that the by-laws of the Society constituted a contract, arrangement or understanding, for the purposes of s. 4D of the TPA.  His Honour stated:

28.    The starting point for a consideration of s. 45(2)(a)(ii) of the TPA is the identification of the relevant market.  The impact of the two counsel rule on competition would vary depending on whether the market were defined broadly (e.g. the national market for legal services), or narrowly (e.g. the Queensland market for legal services from senior counsel).

29.    Section 4E of the TPA provides that:

30.    The notion of substitution of one product for another is frequently a key factor in determining the relevant market.  As Mason CJ and Wilson J stated in Queensland Wire Industries Pty Ltd v Broken Hill Pty Co. Ltd:⁸

“Section 4E directs that a market is to be described to include not just the defendant’s product but also those which are “substitutable for, or otherwise competitive with”, the defendant’s product. This process of defining a market by substitution involves both including products which compete with the defendant’s and excluding those which because of differentiating characteristics do not compete. In Hoffmann-La Roche v Commission (“Roche“) the Court of Justice of the European Communities said:

“The concept of the relevant market … implies that there can be effective competition between the products which form part of it and this presupposes that there is a sufficient degree of interchangeability between all the products forming part of the same market in so far as a specific use of such products is concerned.”

…”.

31.    If Queensland senior counsel refused to provide services (or raised prices beyond an acceptable level), then a solicitor would, subject to the availability of senior counsel from other States and territories, be able to obtain equivalent services from other senior counsel.  The services provided by the respective senior counsel are substitutable for one another.

32.    If Queensland senior counsel refused to provide services, then a solicitor  may decide to use local junior counsel, interstate senior counsel, or a solicitor to provide the legal services.

33.    In our experience, it is not uncommon for a senior counsel to be substituted with a junior counsel.  It is less common for a senior counsel to be replaced with a solicitor.  Without wishing to profess any expertise in the area of market definition (which is largely an expert economic issue) our impression is that the relevant market, or at least one of them,  may well be the provision of specialist advocacy services  in Queensland by barristers and by those solicitors who practise as advocates.  Clearly, the definition of the market is critical.  The narrower the market, the more likely it is that any purpose or effect upon competition will be substantial, and vice versa.

34.    The purpose of reintroduction of the two counsel rule might well be seen to be that senior counsel should not compete with junior counsel for briefs in cases where two counsel are not to be briefed.  The question is whether that purpose involves a substantial purpose of substantially lessening competition.

35. Lessening includes preventing or hindering.9 However, “substantially” is necessarily imprecise.  It is used in a relative sense and involves a quantitative and a qualitative assessment.  With some diffidence, we have arrived at the conclusion, although it is a contestable point, that it would not be a substantial purpose of reintroduction of the two counsel rule to substantially lessen competition in the market as defined.  Distortion of the market would not be the aim of removing senior counsel from the arena of single counsel cases.  But that is not to the point under the statute.  Removing senior counsel from single counsel cases necessarily removes them from that part of the market as defined above.  It must lessen competition in that part of the market. The question is whether the purpose is to substantially lessen competition in the overall market.  That would not be a purpose lightly attributed to the Association, in reintroducing the two counsel rule.

36.    As to the effect of reintroduction, given that senior counsel constitute a minority of the relevant market, and given that (in our experience) many senior counsel do presently appear and advise or settle pleadings with a junior,  we consider that the re-introduction of the two counsel rule would have a limited impact on competition.  We consider that there would be relatively few senior counsel (if any) who would be forced out of the market.  Even if this be incorrect, there would remain a substantial number of senior counsel (and junior counsel) operating in competition with one another.  Again, we do not readily see that any substantial lessening of competition would occur.

 37.    It is unnecessary for us to consider whether the impact of the two counsel rule on competition would be negative.  Although the minority report to the Association states that the two counsel rule would “redress the uncompetitive practices of those who, by taking silk, gain a considerable ‘marketing’ advantage over their peers”, there are statements to the opposite effect.10   Neither are we concerned with whether, if the reintroduction of the two counsel rule would otherwise contravene s. 45 of the Competition Code, any authorization under s. 88(1) of the TPA (see  s. 45(9) of the Competition Code) might be obtained.

38.    Subject to the caveat that our conclusions on the above issues are based on personal experience (rather than evidence), our opinion is that the two counsel rule would not contravene s. 45 of the Competition Code or TPA.

Conclusion

39.    In summary, we are of the opinion that the re-introduction of the two counsel rule may lawfully be accomplished by an amendment to the Barristers Rule, but not by other non-statutory alternatives.

Yours faithfully,

David Jackson QC

Peter Franco

Footnotes

1. Sections 227, 218 and 219 of the Legal Profession Act 2007; the Legal Profession (Barristers Rules) Notice 2007; rule 9(b) of the Barristers Rule.
2. For example, s. 6(3) of the TPA extends the application of Part IV (to the extent there stated) to natural persons engaging in conduct involving the postal, telegraphic or telephonic services.
3. S. 150C TPA.
4. News Ltd v South Sydney District Rugby League Football Club Ltd (2003) 215 CLR 563 at [18] per Gleeson CJ.
5. At [20].
6. (1994) 16 ATPR 41-319 at 42,246.  See also SWB Family Credit Union v Parramatta Tourist Services (1980) 3 ATPR 40-180 at 42,481 per Smithers J; ACCC v Universal Music Australia Pty Ltd (2001) 201 ALR 502 at [458] — [459] per Hill J.
7. (1996) 18 ATPR 41-461 at 41,619.
8. (1989) 167 CLR 177 at 188.
9. S. 4G TPA.
10. For example, a former president of the Australian Law Reform Commission has referred to the two counsel rule as one of the “more egregious [of the] old restrictive trade practices” (cited from a speech delivered by Professor David Weisbrot, entitled “Reform of the civil justice system and economic growth: Australian experience”).
    

A Draft Amended Criteria for Appointment and a Draft Amended Appointment and Consultation Process have been published with the article from the President concerning the Council’s review of the Senior Counsel appointment process. The President has called for submissions with respect to these drafts.

In addition, Hearsay encourages all members to comment on the drafts and/or the Council’s review of the appointment process by posting on the Forum. The purpose of the Forum is, of course, to facilitate healthy debate amongst members and the exchange of information for our mutual benefit.

To go the Forum, please CLICK HERE.

On 13 November 2007, the following members were appointed as Senior Counsel in and for the State of Queensland:

    Brad Farr
    Declan Kelly
    Michael Kent

As the Criteria for Appointment make plain, the designation of Senior Counsel provides a public identification of barristers whose standing and achievements justify an expectation, on the part of those who may need their services as well as on the part of the judiciary and the public, that they can provide outstanding services as advocates and advisers, to the good of the administration of justice.

Hearsay congratulates Brad, Declan and Michael on a wonderful achievement.

The lost quest for self-improvement

A couple of years ago, Justice Hayne commended to a Brisbane audience Bryan Garner’s work on “Issue-Framing”.  I rushed out and bought a couple of Garner’s books. I still haven’t read them.  With briefs to work on, why waste time reading The Winning Brief ?  Come Summer vacation, there were unread works by Amis and Balzac to enjoy. Why take Garner’s Legal Writing in Plain English to the beach when you could take the latest Shayne Maloney novel about the adventures of Murray Whelan — an accident-prone apparatchik on the fringe of Victorian ALP politics.  Plus, I feared that Garner’s works might be the legal equivalent of those horrible self-improvement books by Dr Phil and snake oil salesmen about secrets to success.  So Garner’s works sat in my room, unread and unloved.

Spill the beans on the first page

A recent discussion with a colleague about submissions for special leave applications in the High Court made me recall Garner and “Issue-Framing”.  I flicked through his works.  I should have read them years ago.  They are not full of psycho-babble as I feared.  They have plenty of practical advice about techniques for analytic and persuasive writing.  Mind you, some of the advice seems obvious, for instance, that a piece of legal writing should have an introduction, a main body and a conclusion.  Yet Garner says very few lawyers write this way.  All we write is “the middle”.  Garner says an ideal introduction concisely states the exact point at issue, stripped of all extraneous matter.  Yet legal writers rarely do this.  As a result, our written work is described by Garner as “often diffuse, repetitive and poorly organised”.  The reader has to work hard to find out the question the written work purports to answer.

Garner says that any piece of persuasive or analytical writing must deliver three things:  the question, the answer, and the reasons for that answer.  The aim is to lead the reader to have those things in mind within 60 second of picking up a document, whether it is an outline of submissions, an opinion or a judge’s reasons for decision.  In order to do, this the work has to open with a factually specific issue that captures the essence of the problem.  This is called “issue-framing”.

Framing the issue

It may be possible to frame the issue in one sentence.  But Garner says that typically this method ruins the chronology, forces the writer into over-long sentences and makes the issues unduly abstract.  He offers the following tips:

• Put the issues first.
• Never — never — begin with Whether or any other interrogative word.
• Break each issue into separate sentences.
• Keep each issue under 75 words.
• Weave in enough facts, and arrange them chronologically, to show how the problem arises.
• Forget about whether the answer is yes or no.

Typically the format is: statement, statement, question.

Deep and surface issues

Most of us frame issues in the abstract, or what Garner calls “surface issues”.  This requires a reader to know things about the case before the issue can be truly comprehended.  For instance, a “surface issue” is “Can Jones maintain an action for fraud?”.  This issue is easy to frame, but not very helpful to the reader in a specific legal context, such as where the defendant is moving for summary judgment.  Garner presents the same question in a way that sums up the case in a nutshell, and makes it easier to understand.  

As Garner observes, the longer version asks the reader to do considerably less work.  The shorter version requires the reader to go elsewhere to learn what, precisely, the issue is.  The “surface issue” says little about what the Court is being asked to decide.  The “deep issue” explains it.

Persuasive and analytical issues

Some of our written work, like submissions, is intended to persuade.  Other analytic writing, such as opinions, has a different purpose. An analytic issue at the start of an opinion will have an open-ended question.

By contrast in framing an issue for a persuasive work, the question should suggest the answer you want.  The great legal scholar, Karl Llewellyn in a lecture on appellant advocacy, said that the first art is framing the issue so that, if your framing is accepted, you win.

Garner points out that framing an issue is far more persuasive than a mere statement of the conclusion.  The advocate is asking the Court to address a straightforward question.  He offers the following example of the persuasive framing of an issue:

“Liability-insurance coverage for directors and officers of financial institutions is universally required to recruit well-qualified directors and officers.  When the Trew Group acquired First Eastern from the FDIC in 1987, the FDIC agreed to pay the ‘reasonable and necessary’ operating costs of First Eastern.  Is the FDIC obligated to pay the cost of directors’ and officers’ liability insurance for First Eastern?” [62 words]

Analytic issues are different.  Unlike persuasive issues, they are open-ended and the reader is not led to the answer upon reading the question.  But the reader wants to know the answer.  Therefore, an opinion that frames an analytical issue in its introduction ends with a question to which the reader does not know the answer.  The answer should immediately follow the question.  In this way, the question and the answer constitute, in effect, an executive summary.  The reader understands the upshot of the issue and the answer given to it by the writer.

Here are two examples of analytical issues that appear in the second edition of Garner’s work A Dictionary of Modern Legal Usage:

“Section 273 of the Immigration Act makes it a crime to bring an undocumented alien to the US.  Meanwhile, section 2304 of the Maritime Act makes it a crime for the master of a vessel to fail to rescue persons aboard a vessel in distress.  Does a master commit a crime under the Immigration Act when he rescues illegal aliens aboard a ship in distress and brings them to the US?  If so, what are his defenses?” [75 words]

“Mr and Mrs Zephyr were killed in a crash of an airplane negligently piloted by Mr Zephyr.  Their daughter, Kate, has sued the estate of her deceased father for the wrongful death of her mother.  Does the doctrine of interspousal immunity bar Kate’s recovery when there is no marital harmony to preserve?” [52 words]

Issue-framing in our daily work

When we write submissions in applications for special leave to the High Court, we are required to frame the special leave issue at the start of our written submissions.  In other Courts, we are not required by rules to frame the issue(s) at the start, and so we usually don’t do so.

From watching American courtroom dramas on the TV and from reading briefs and judicial opinions from the USA, it is easy to think that American lawyers are genetically engineered to perform “issue-framing” as a matter of course.  But Garner says that very few American lawyers frame their issues well.  Instead, like us, they tend to do one of two things.

First, they build up to the question with pages of facts and, in doing so, badly over-particularise the facts.  I know that newspaper editors call a similar style of writing by journalists  “burying the lead paragraph”.

The second, and different error, is to assume that the reader knows about the facts, and, instead of referring to them, the writer goes straight to the “issue” with an abstract or “surface” issue like:

The issue in this matter is whether the plaintiff is entitled to recover damages for contravention of s.52 of the Trade Practices Act?.”

Very few lawyers avoid these traps.  The first is over-particularisation that hides the issue from the reader.  The second is to frame an issue in a vague and unhelpful way.

I am guilty of both.  In fact, I am a repeat offender. But I don’t feel alone. I should have read Garner’s books last Summer.

Peter Applegarth SC

Contributors

Peter Applegarth SC
The Honourable Austin Asche AC, QC
The Honourable Justice Atkinson
Damien Atkinson
Peter Axelrod
John Bond SC
The Honourable Sir Gerard Brennan AC KBE
Michael Byrne
Seamus Byrne
The Honourable Mr Justice Chesterman
Joshua Clifford
Gary Coveney
Jarrod Cowley-Grimmond
Chris Crawford
Andrew Crowe SC
James Crowley QC
The Honourable Justice Daubney
The Honourable Paul de Jersey AC, Chief Justice of Queensland
Cameron Dick
Richard Douglas SC
The Honourable Douglas Drummond QC
Greg Egan
Dimitrios Eliades
Ken Fleming QC
Peter Franco
Hugh Fraser QC
Paul Freeburn SC
Richard Galloway
Shaun Gordon
Robert Gotterson QC
Melanie Hindman
Darin Honchin
Keith Howe

Christian Jennings
Dominic Katter
Stephen Keim SC
Andrew Lyons
Frank Martin
His Honour Terry Martin SC DCJ
Margaret McLennan
John Meredith
Shane Monks
Robert Mulholland QC
Douglas Murphy SC
David North SC
Dan O’Gorman SC
Sarah Poon
Bernard Porter
Andrew Proebstl
Bradley Schatz
Richard Schulte
Andrew Sinclair
Jann Taylor
Erin Thomas
Dane Thornburgh
Joshua Trevino
Craig Wilkins
David Williams
Karen Williams

Special Thanks To …

Michael Liddy. His proposal to establish and then assume the role of featured chambers coordinator together with the energy and perseverance he has brought to that task has us all in his debt.

Hearsay is also indebted to the President, Hugh Fraser QC, and the Chief Executive Officer of the Association, Dan O’Connor, for their ongoing assistance and support.

Lastly, but by no means least, special thanks are extended to my secretary, Emma Macfarlane, whose tireless work and enthusiasm for the publication made all the difference and to Greg Hale, our graphic designer, and Brett Young, our website guru, who endured our often unreasonable demands with patience and understanding. 

The next editon of Hearsay will be published in February 2008.

Merry Christmas.

Martin Burns

Editor

The Australian Bar Association yesterday joined with the leaders of the Bars of England and Wales, Scotland, Northern Ireland and Ireland in calling for the return of the Rule of Law in the Islamic Republic of Pakistan.

The President-Elect of the Australian Bar Association, Mr Tom Bathurst QC said “The suspension of the Constitution, the interference with the
independence of the judiciary and the legal profession and the denial of
fundamental rights strike at the very heart of a fair and just society.”

“The dismissal and detention of Chief Justice Iftikhar Chaudhry is of
particular concern to the Australian Bar” he said. It is understood that
60% of Pakistan’s appellate court is currently under house arrest and
thousands of lawyers have been imprisoned, some in solitary
confinement. “It is a deplorable situation that cannot be allowed to
continue” Mr Bathurst said. He noted that “People are being imprisoned,
denied their fundamental rights for doing no more than during their duty
to the Constitution, ensuring the maintenance of the rule of law and the
securing an independent voice for the people of Pakistan”.

The Australian Bar Association called on the Commonwealth
Government to use its best endeavours to ensure that diplomatic pressure
was maintained on the military regime to respect the rule of law and to
honour the promise of an overdue return to democratic rule in Pakistan.

Australian Bar Association
3 December, 2007

I have been asked to do many things since I became Chief Executive of the Bar Association, none harder than this obituary. Ian Richie Perkins or “Perko” as he was affectionately known was born on 11 September, 1961. His tragic death on Wednesday 14 November, 2007 following a cycling accident brought into sharp focus the fragility of life and the tenuous grip we have on it. It is hard to do justice to someone in a few lines. But if I was to say nothing else it would be to say that he was the greatest of friends. A loyal, honest and truly decent person. I can confidently say that as I was his friend for more than 34 years.

Ian spent his high school years at the Church of England Grammar School (“Churchie”). Neither of us ever fully adjusted to the change in title to the Anglican Church Grammar School. He was academically bright and was a keen sportsman, playing cricket and rugby. He was a Prefect and House Captain of Mansfield. His confidence, character and zest for life were self evident in those days. Churchie’s ethos was based on St Magnus, a Viking Earle known for his strength of character and his qualities as an educated man with a Christian nature. In my view, Perko was an exemplar of that.

On reflection, Perko was always destined for a life at the Bar. His early advocacy style was beginning to develop, even at Churchie. Numerous personal appearances before the Headmaster allowed him to develop new and unique arguments. When persuasion and the merits of the case failed, his personal charisma always seemed to carry him through.

In the Mansfield House Captain’s Report published in the 1978 School magazine “The Viking” he wrote:

This year has seen a continued emphasis on participation in activities rather than an all-out attempt to succeed. Nevertheless, some members of Mansfield have reached pinnacles of sporting success.

That is a fine piece of written advocacy because no parent reading that report would have realised that their son had no chance of sporting success in 1978. Mansfield was second only to Grenfell (my own house) for a total lack of sporting ability. The Mansfield exception was probably McKenna S.C. (as he then wasn’t) who, as I recollect, captained the School Basketball team.

In 1982, Perko graduated from the University of Queensland with a Bachelor of Commerce and obtained his Bachelor of Laws with First Class Honours in 1985. During his University days, Perko was a “Grey Coat” at the Ekka. A “Grey Coat’s” responsibilities included, in theory at least, a requirement to diligently follow the instructions of the Ringmaster to ensure that the jumps were correctly positioned prior to and during the jumping competition in the Main Arena. Unfortunately, fuelled with alcohol coupled with the effects of the sun and youthful enthusiasm, things didn’t always go to plan. The Stewards, by contrast, were models of sobriety and dedication.

Perko was articled to Brian McCafferty at Morris Fletcher and Cross and became a Senior Associate in January, 1989. He was called to the Bar on 7 June, 1993. His Masters were David Cooper (now of Senior Counsel) and Lister Harrison QC. Perko spent the bulk of his early years on Level 16 of the Inns of Court before moving, in more recent times, to Level 23 at 239 George Street. He enjoyed the friendship, support and camaraderie of his Chamber colleagues.

Over the years he developed an excellent commercial practice with a particular interest in Banking, Insolvency and Property. As we all know, in the law, and in particular at the Bar, a person’s integrity is everything and Perko had it in spades. Trusted by judges and his colleagues –what he said was accepted as the truth – nothing further was needed. He was, in short, a fine barrister with a keen mind and the right demeanour to succeed. The great tragedy is that we won’t see Perko reach his full potential which I have not a modicum of doubt that he would have.

In 2006, Perko was appointed a Director of Barristers Services Pty Limited, the Bar’s service company and was for many years a scrutineer for Bar Council elections. He was keenly aware of what it meant to be a professional and was always willing to assist new barristers as well as the Association in a number of areas. He was Junior Master to John Peden, Shannon Moody and Sally Jenkins.

Something of an “action man”, Perko trekked through the Himalayas, cycled through Vietnam and walked the Kokoda Trail twice. Many of these excursions were with Rob Davidson, one of his long time friends. It will come as no surprise to many members of the Bar to note that I was not, because of work commitments, able to join them on those treks. In reality, I found it inconceivable to imagine abluting in a ditch at high altitudes.

Perko liked playing a round or two, but in more recent years his visits to the greens at Royal Queensland became fewer. His real passion was cycling and he enjoyed it to the fullest. He enjoyed the long weekend rides, the trips to Adelaide to ride and following the Tour de France. The cycling holiday following Le Tour was a real highlight for him. He returned relaxed and re-energised. Despite his best efforts, he was never able to fully convince me of the benefits of a complete cardio vascular workout.

Notwithstanding the fact that he had gone to a strong rugby school, he became a devotee of Australian Rules Football and, in particular, a passionate supporter of the Brisbane Lions. He was a regular at Lions matches and followed the team to Melbourne on each occasion that they reached the Grand Final. Those visits to the Gabba were always filled with emotion as he followed the fortunes or otherwise of the team with great interest. They were also, more importantly, a great social occasion.

Few people would know that Perko was an excellent snooker player winning the Queensland Club Snooker competition on three separate occasions and was in line to win it again this year. The Club was a refuge for him and he was a regular participant in the various social and recreational activities it had to offer.

Perko never lost his enthusiasm for life, his love for his family and the enormous pleasure he got out of being amongst his friends. He was a devoted and doting uncle and took great pride in his nieces. He spoke of them often.

Ian was farewelled at St John’s Cathedral on Thursday 22 November, 2007. More than 800 mourners packed the Cathedral, a fine testament to his standing in the profession and the wider community. Perko’s wake was at the Brisbane Lions Club Members’ Dining room. It was a great occasion and I know that he would have approved. The sense of Ian’s loss still troubles many of us. He will be greatly missed by his family, his many friends and colleagues.

Dan O’Connor

I must confess that in my early years in the law judges were sold for money. Although it is a thing of the past I propose to expose the whole scenario in the interests of truth.

I settled a Claim and Statement of Claim for the District Court, along with an Application for an injunction. It was urgent. On Thursday 20 September 2007, the solicitor’s clerk filing the documents phoned to say that the first available date was 16 October 2007. I said the matter had to come on the following Monday, giving us time to serve the documents and prepare the argument. Subsequently, I was informed by the solicitor that the registry could not assist but that the solicitor could write to the Judge’s Associate, if she wished, putting the case for an urgent hearing. Later still, I was informed that that had not borne fruit and the matter was listed for 16 October 2007.

It was imperative to have a judge urgently so I phoned the Chief Judge. The Associate informed me that the Chief Judge was away. I told her that I had an urgent Application and I had been informed that no more Applications could be taken on the Monday.

On Friday afternoon I received an email to the effect that the Applications Judge had kindly agreed to mention the matter at 9:30am the following Monday to try to organise a time for the hearing or an alternative day.

I duly attended at 9:30am. Unfortunately by that time everything had gone bottoms up. The solicitor had not managed to serve the documents, she had gone on holidays, the principal was involved in another court and I was assigned a lowly clerk to try to explain the convoluted circumstances to the Applications Judge.

In the course of the discussion I got the impression that His Honour believed that I had sought to have the Chief Judge overrule him and force him to take the Application despite the fact that his list was full. I moved quickly to correct that perception. I informed him that I had approached the Chief Judge (through her Associate) to have her appoint another judge from the twenty or so in Brisbane to meet my client’s humble needs. I told His Honour that the matter could not proceed and would have to be reviewed with the solicitors and the clients and the discussion ended.  In the course of my explanation I mentioned that in the “good old days” one simply walked between Associates’ chambers to obtain a judge to hear the urgent interlocutory matter.

In those “good old days”, you would approach an Associate and if the Associate could persuade his judge to take the matter, (called a “Special”) the solicitor would pay the Associate four guineas, which was meant to be shared, as I recall, with the shorthand writer. So, with a well directed four guineas, one could acquire the judge of one’s choice (well almost)!

They were balmy days. Associate Des Draydon (as he then was) had a very cooperative judge. Des poked his head regularly out of the Associates’ chambers and attracted lots of young solicitors and articled clerks who acquired Des’s judge (the late Sir Harry Gibbs). Bill Lee (later the Honourable Justice Lee) was also a keen vendor. He sold his judge for four guineas whenever possible, although it must be said that his judge, Mr Justice Mack (later Mack CJ), was less inclined to accept Bill’s smooth talk. He was not as kindly disposed as was Gibbs J to law students and Associates.  The other Associates were in on the racket too.

Such a system creates a healthy market. Solicitors should be allowed to troll through judges’ chambers to negotiate with hungry associates. No doubt the fee would be much more, but probably still a good investment. Unfortunately our judges are cloistered in hidey holes at levels above where the ordinary solicitor and articled clerk can penetrate. We are forced to rely upon the judgment of the clerk in the registry, who, in the absence of any financial encouragement, says that your “urgent matter” filed on the 20 September 2007 can comfortably be heard on the 16 October 2007. Reform is necessary. Bring back selling judges, I say.

James Crowley QC

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The E.J.D. Stanley Trophy was this year held on 28 October and was won by McMeekin J and Charrington who combined well  in the 4BBB event to record a very fine score of 46 points. Runners up on a count back were Shepherdson QC and McLeod.  The J.A. Griffin QC Perpetual Trophy was won by McLeod with a single stroke score of 41.  The longest drive was a 285 metre effort by Peter Robertson.  King-Scott was the nearest to the pin winner on the 2nd and 12th holes, whilst the evergreen Ulrick was closest on the 17th.  Boyce QC was troubled by swarming butterflies, Judge Martin SC was attacked by plovers, Swanwick ran out of balls and Errol Morzone ran out of petrol.  All part of a day’s golf.

Thanks are extended to the Chief Justice and the President for presenting the respective trophies and for their support for the event. Peter Steele of Suncorp and LexisNexis are to be thanked for prizes donated, as is Dan O’Connor and his staff for logistical assistance.  Participation in the day was the highest for a decade and it is hoped that that trend will continue, particularly in the light of Chesterman J having kindly offered to next year donate a perpetual trophy for presentation to the female pair with the best Four Ball Best Ball score. To qualify, such players will need to be either a member or former member of the bench or bar, or the wife or partner of such member.  An enjoyable day was had by all.

Greg Egan 

 

How it all started  

The following account appears on the website dedicated to the campaign:

“I’d been living in London when my world turned upside down and I’d had to come home.

By the time my plane landed back in Sydney, all I had left was a carry on bag full of clothes and a world of troubles. No one to welcome me back, no place to call home. I was a tourist in my hometown.

Standing there in the arrivals terminal, watching other passengers meeting their waiting friends and family, with open arms and smiling faces, hugging and laughing together, I wanted someone out there to be waiting for me. To be happy to see me. To smile at me. To hug me.

So I got some cardboard and a marker and made a sign. I found the busiest pedestrian intersection in the city and held that sign aloft, with the words “Free Hugs” on both sides.

And for 15 minutes, people just stared right through me. The first person who stopped, tapped me on the shoulder and told me how her dog had just died that morning. How that morning had been the one year anniversary of her only daughter dying in a car accident. How what she needed now, when she felt most alone in the world, was a hug. I got down on one knee, we put our arms around each other and when we parted, she was smiling.

Everyone has problems and for sure mine haven’t compared. But to see someone who was once frowning, smile even for a moment, is worth it every time.”

Ten News Story