The day started with a sports law conference in the morning held at the Vibe Hotel in Southport. This was an informative and interesting event, ably chaired by His Honour Mr Wayne Cochrane of the Land Court of Queensland. The speakers were all from the New South Bar.

The first speaker was Graham Turnbull SC. Graham kept the audience captivated and entertained by his presentation on the topic “When physical contact on the field becomes a crime.” The presentation included video clips and photographs of some notorious incidents in football around the world.

The next speaker was John Marshall SC. John spoke about “Anti-doping in sport.” John’s presentation gave an overview of the way in which the systems in various sports deal with drugs. John also provided a valuable insight into some of the leading cases, including cases in which he has acted for one of the parties.

Dr Elizabeth Peden and Danial Tynan lent some flavour to the academic analysis of “Issues of construction in sports contracts. They reviewed the legal issues confronting a professional sportsperson who wants to walk out on a club and ignore the contract.

Then we had a valuable and thoughprovoking word from the sponsor of the event, Peter Steele from Medico Legal Insurance Group. Peter, who spent many years at Suncorp Insurance, outlined the excellent product which has been taken up by the Queensland Bar. It is a group insurance policy in which members of that Bar are covered for $250,000 for death or disability simply by being members of the Queensland Bar.

The final session was a panel discussion chaired by John Maconachie QC. The panellists were John Marshall SC, Lachlan Gyles SC, John Harris and Simon Burchett. The chairman and the panellists provided a helpful guide to “Appearing before Sports Tribunals”. The reflections of the speakers included some examples of effective advocacy, having regard to the composition and priorities of the various tribunals.

The conference was well worthwhile. Throughout the morning there was input from practitioners who had been involved in some of the leading cases. The delegates gained insights which cannot be gleaned from case reports and law books.

Our thanks go to Anthony LoSurdo for his tireless work in organising the conference.

In the afternoon we played the matches at Robina City Soccer Club. The three games provided some willing competition. While no crimes were committed, bruises were given and received, and the referees were kept busy.

The weather was fine, if a little windy. The pitch was good.

There were three matches of 30 minute halves.

In the first match New South Wales defeated Queensland 3:2. After a well drilled Queensland applied considerable pressure and took the lead, New South Wales, captained by John Harris, clawed back into the game and overcame the hosts. The scorers for New South Wales were Daniel Tynan, Stephen Free and Vahan Bedrossian. The scorer of both goals for Queensland was Hamish Farr.

Nick Tiffen, a Sydney clerk, was referee. He selected Daniel Tynan as best and fairest for New South Wales and Lee Clark as the best and fairest for Queensland.

The next match was New South Wales v Victoria. The following members of the Victorian bar took the field:

Con Lichnakis, Douglas James, Hamish Austin, Jim Fitzpatrick, Lionel Wirth, Michael Biviano, Mike Kats (captain) and Peter Agardy.

Jim Fitzpatrick’s friend and former team mate, Tharaka Narayna from Brisbane, joined our team for the day. In addition, New South Wales lent us some star recruits, some as substitutes. These were John Harris, who was fearless in goal for both of our games, Gillian Mahony, David Stanton, Colin Magee, Simon Phillips, John Marshall and Geoff Lindsay. Nick Tiffen discarded his whistle and played for us for a short time in our match against Queensland.

We held New South Wales to 0:0 for the first half. But we were overrun in the second half, with Sydney winning 4:0. The goalscorers were Vahan Bedrossian (2), Colin Magee and Simon Phillips.

The match was refereed by Anthony Lo Surdo. He selected Vahan Bedrossian as the best and fairest for New South Wales and Lionel Wirth as best and fairest for Victoria.

The third match was Queensland v Victoria, refereed by Simon Burchett.

Queensland prevailed 3:1, ably captained by Johnny Selfridge. The goalscorers for Queensland were Joe Morris, Hamish Farr and Michael Hodge. Con Lichnakis scored for Victoria with a clever chip over the Queensland keeper, Justice Colin Forrest of the Family Court.

The best and fairest for Queensland was Johnny Selfridge. For Victoria the referee selected Jim Fitzpatrick.

In each of our games Mike Kats played a captain’s match, never giving up for a moment. Jim Fitzpatrick and Con Lichnakis, tireless in midfield, absorbed considerable pressure, as did our striker Hamish Austin. Michael Biviano, Lionel Wirth and Douglas James were robust in defence. Peter Agardy had an easier time on the wing.

We look forward to the re-matches in Melbourne next year when we will have a full team available.

Our thanks go to the referees and to Johnny Selfridge and Paul Flavel for organising the venue for the matches.

Justice Forrest presented the trophies. These were the Suncorp Challenge Cup, which New South Wales retained (again) at the expense of Victoria. New South Wales also took the overall winner’s trophy. Each player received a medallion commemorating the day.

Many of the players and supporters finished with a dinner in the evening at the Vibe Hotel.

This was the fourth annual event between New South Wales and Victoria and the second in which Queensland participated. It is hoped and expected that this great event will continue for many years to come.

Peter Agardy

Victorian Bar Association

Mr President, Chief Justice and President McMurdo, members of the judiciary, guests, colleagues and friends, I am told that being asked to make this toast to the judiciary is a great honour. From where I stand it looks much more like a potentially career ending opportunity.

From the President’s opening remarks you may realise that I come to be in this position as a result of sweet revenge. A few of you would know that I was indeed admitted to practice as a barrister on the same day as the President Mr Douglas SC, who has placed me in this invidious position. In fact, the President was admitted one before me, as the Barristers Roll will confirm.

Perhaps I might be permitted to digress in this regard.

I can confirm he did lend me the $200 admission fee. It was paid back which had more to do with the amount than my then financial responsibilities: any less I would not have bothered: any more I could not have afforded the repayment.

Our admissions came after we had worked in chambers side by side as judges’ associates for a couple of years. He had worked for his distant relative Justice James Douglas (or Jumbo as he was affectionately called by Richard) and I had worked for the Campbells, firstly Sir Walter Campbell and then DM Campbell J (as they were affectionately called by me).

It may come as a surprise to some that my wants, needs and activities as an associate were somewhat different from those of Richard, indeed the astute amongst you may have noticed I am, frankly, somewhat different from Richard. Richard is bold and confronting; I am shy and retiring. Richard married well… above his station; and I married well… frequently. Richard finished his education in Townsville; I did so at Cambridge.

But I digress, let us go back to our time as associates.

While we both faithfully served our judicial masters while completing our legal studies, I tended to require more recreation than Richard. After about 18 months I did manage to get Richard to come to the then Criterion Hotel for a steak and a couple of beers one lunch time. When we returned, Richard went off to do some errand for his judge.

As I sat satisfied in my associate’s room, the heavy foot fall of Justice Douglas aroused my attention:

“Where’s Richard?”

he said in his characteristic gravelly voice.

Doing the best I could to assist in this tense situation, I indicated that I thought he had gone to the pub for lunch.

Within a few minutes Richard returned, no doubt from his errand, to be greeted by a hissing Justice Douglas with the words that I shall never forget:

“………………..Richard where have you been? You are supposed to be my bloody associate!”

Richard has never forgiven me — although, as is obvious to all, tough love has been good for Richard.

It would be remiss of me not to mention, however, that not only the Bar but also the Bench are lucky to have someone of Richard’s courage, energy and forthrightness to serve as President of the Bar Association.

It is indeed a privilege to be asked to give this toast tonight because of the great respect and affection I have for a number of judges before whom I have appeared and with whom I have enjoyed many extramural activities.

The society of judges has much to recommend it. Why just a couple of days ago I was sharing a couple of beers at the newly refurbished Grosvenor Hotel with my good friend Justice X. We were enjoying the view, when, as luck would have it, we were interrupted by Justice Y.

What followed was an interesting conversation about the finer points of the law of unjust enrichment particularly in its application to modern entertainment venues. I found it edifying.

On a more serious note I, like many of my colleagues at the Bar, remain sincerely grateful for the industry of many judges as, through that industry, it is possible for all at the Bar to advance the cause of justice and, in passing, to earn a decent living!

In this regard through the good offices of my chamber mates Plunkett and Amerena (who sit on the Bar Council) I have been provided with recent statistics in a report from the steering committee for the Review of Government Service Provision (also known as the Productivity Commission). The report makes it clear that in terms of net recurrent expenditure (of tax payers’ money) on the finalization of matters commenced in court, Queensland’s Supreme, District and Magistrates Courts are (with one minor exception) the most efficient of all the Courts in Australia in terms of the cost of disposal of both civil and criminal matters. That is so notwithstanding that Queensland has the lowest number of judicial officers per 100,000 people in the country.

These statistics confirm that, in the main, our judges and magistrates are working hard indeed.

The relationship between members of the Bar and the Bench is of course not always purely at a professional level.

In individual circumstances the relationship between barristers and judges is often personal and involves deep friendships and respect often originating from times shared at the Bar. From time to time it does involve, regrettably but inevitably (probably through the adversarial nature of our profession) rivalries, animosity and occasional disrespect.

It has occurred to me that in making this toast to the Judiciary I should take this opportunity to share with you some of my own personal experiences with members of the Bench over the years. It will remind us all that nothing said or done in Court goes unnoticed — particularly by the young and impressionable.

It would be remiss of me not to mention that Justice Chesterman is to respond to this toast. This is not the first time that Justice Chesterman has had the last say with respect to my submissions. He and I meet regularly in the Court of Appeal where, as tonight, His Honour has the last say.

Perhaps the only difference this evening is, I may be allowed to get out what I want to say without the generally helpful, and certainly prolific, interruptions, which we have all come to know and love in the Court of Appeal.

Justice Chesterman, during a recent conversation suggested that in view of the prevalence of mediation and alternative dispute resolution he might speak of the “missing” judge or the “disappearing” judge. Perhaps in view of the few anecdotes I intend to relate, I might be seen as speaking about not the “missing” judge but the “kissing” judge or the “hissing” judge.

Being in my 50’s, I (like many of you here tonight) have seen judges over nearly four decades. I have seen them kiss, and I have seen them hiss at, the advocates before them.

In early days many of the judges were veterans; many were larger than life, many of them were eccentric; many were very well read; and many of them were charming. Most (but not all) tended to kiss rather than hiss.

In terms of all of those characteristics the late Justice GAG Lucas springs to mind.

I well remember sitting as an associate in the old Full Court one hot summer’s afternoon when the late Trevor Hartigan was appearing for a prisoner pleading an appeal against sentence. Hartigan was attempting to demonstrate that his client was intoxicated, and perhaps not fully in command of his actions as a relevant matter to be taken into account in mitigation of penalty. Some may recall that Hartigan had from time to time a habit of pausing, almost stuttering over words.

On this sleepy Friday afternoon, Hartigan said to the Court:

“And so, and so, and so your Honours, by the time of the offence my client had drunk, had drunk, six stubbies of beer and a bottle of Bodega which shows, which shows…”

At which time Justice Lucas leaned back and said, quite audibly, to Sir Walter Campbell:

“Which shows remarkably poor taste in Champagne.” 

Working with Sir Walter Campbell was indeed a great pleasure, although His Honour was capable of kissing with his wonderful enjoyment of life, he was also capable of hissing.

Let me tell an associate’s tale.

The more senior amongst you will remember the dreadful process of “noting up”. In the dark ages before the computer “on-line” legal research, every few months legal publishers would circulate sheets of small sticky bits of paper to be pulled apart and inserted in law reports indicating that a particular decision had been discussed or followed, affirmed, distinguished or not followed. The process of putting these sticky bits of paper in the reports was tedious and despicable, but judges’ associates (even Richard Douglas who was supposed to be Justice Douglas’ associate) were expected to do it.

My period of associateship with Sir Walter followed associateships by Sir Walter’s late daughter Deborah and his son our colleague Wallace who, because of their filial relationship, seemed to have neglected the tedium of noting up and, to be frank, got away with it.

A few months into my term as associate Sir Walter asked of me: “Hughes, have you got the ‘noting up’ all up to date?”

Thereafter, the conversation went like this:

Hughes to Sir Walter: “Sir Walter do you know why the devil was sent to hell?”

Sir Walter to Hughes: “No, why?”

Hughes to Sir Walter: “For asking questions he knew the answer to.”

At this point Sir Walter hissed words which I found curious coming from a Campbell (and a leader of the Clan to boot!): “You and your bloody Scottish mother.”

In terms of hissing as an associate I also had the educative experience of watching the late Justice Peter Connolly savaging the dapper Des Derrington Q.C. — which was my initial introduction to the notion that the Bar/Bench game did not always involve beer and skittles!

I enjoyed my period as associate very much. I had the privilege of meeting and working with many very worldly and interesting judges, most of whom had served their country during the second war and many of whom, perhaps because the times were less complicated, maintained active interests outside the law which I can’t but help think assisted in their capacity to determine the worldly matters before them.

My first decade at the Bar involved sharing chambers with Sandy Thompson S.C. and Justice White and Chief Judge Wolfe (as they then weren’t). I hasten to add that in chambers there was definitely no kissing and no hissing — only hard work and the occasional glass of champagne on special days such as Justice White’s birthday which (as the Chief Judge often remarked) was an anniversary which had occurred so much more often than her own.

There is much I could say about both those now distinguished women jurists but, as they were not judges at the time, Justice Chesterman would no doubt rule any such stories as irrelevant and “of no assistance“. I will say that I grew up thinking that about half the Bar was (or should have been) women!

Life in Court at the Junior Bar again brought examples of both the kissing and hissing judge. First a hiss.

When I had been at the Bar a few years I had a chamber matter against the Late Bob Douglas QC before none other than Justice Moynihan, whose recent reforms and recommendations have, I understand, done much to endear him to our colleagues at the Criminal Bar. In front of a crowded callover when my matter against Douglas QC was mentioned I informed the Court that the application involved the construction of a particular document to which His Honour, who perhaps had read the file in detail, or perhaps not, responded in hissing tones:

“No it’s not Mr Hughes and if you had read your brief before you stood up you would know that it is not.”

A feeling of complete relaxation came over me. Every barrister fears that he will be professionally maligned, if not publicly defamed, in front of his colleagues because he may have made some terrible error or been otherwise derelict. When, as it did that day, accusations actually arise, all of a sudden the fear leaves one. Didn’t seem that bad after all. The earth did not open up and swallow me, nor did the sky fall.

The interesting and, for me, charming conclusion to this anecdote is that about a week later, after Justice Moynihan had reserved his decision, he delivered reasons for judgment (an occasion, obviously before lunch, at which both Douglas QC and I attended). I won the application (one of the few so I remember it) on the basis of the very construction point that I had been belittled for announcing at the callover. After allowing the application His Honour stood up and was lumbering out of Court when I interrupted him and (echoing the timid voice of Dickens’ Oliver asking for “more”!) asked:

“Your Honour, please could I have my costs?”

His Honour with all the charm of an unhappy Irishman turned to Douglas QC and said:

“I suppose there is no reason why HE can’t have HIS costs.”

There were also many hissing experiences in the early days of the Court of Appeal (now 20 years old and now presided over by a President who is a woman with a remarkable and commendable judicial temperament).

It was not always thus. While President Fitzgerald and Justices Pincus and Davies were all capable of hissing perhaps the most aggressive tactic was that of the then President Fitzgerald involving no sound at all. When faced with a submission he did not like, or with a refusal by Counsel to make some concession, His Honour, as many of you may recall, had a wonderful habit of turning his back to the Bar table so that we were presented with the rear of the judicial chair — perhaps the least attractive aspect of the judicial vision.

Such judicial behaviour contrasted with that of the then Chief Justice Macrossan — a master of gentle persuasion who, when unimpressed with a proposition would enquire whether one had “any other points, perhaps even better ones!” The present Chief Justice, I am pleased to acknowledge, carries on that tradition of appropriate judicial demeanour.

I witnessed firsthand many hissing experiences in the trial courts, particularly at the hands of the notorious McLaughlin brothers, but now let me speak of a kissing experience at first instance.

On a Friday morning pleading guilty before a judge then unknown to me by the name of Nelson Anthony Skoien, I was briefed to appear for an 18 year old girl charged with breaking and entering. She was a heroin addict and tragically, been since the age of 14. She had, shortly before the sentence, found her way onto the methadone programme and was making progress. The concern was to endeavour to ensure that she did not receive a custodial sentence.

With the enthusiasm of a young barrister on a Friday morning (intent on heading to the Milano Restaurant for lunch) I was explaining to His Honour that like Orpheus she had left the underworld of heroin and was making good progress but that if she had to look backwards, or take a backward step involving, for example, the underworld of the prison cell, she would… and before I could finish the sentence His Honour interrupted and said:

“She would lose her Eurydice Mr Hughes. I understand what you are saying, your client will not be receiving a custodial sentence.”

At that point I sat down and thought what an interesting and well read man.

His Honour Judge Skoien and I became friends and enjoyed wonderful times together. We travelled together particularly in France and Ireland, and over the years I have developed a great respect for him both professionally and personally. I appeared before His Honour often in the Planning Court and, to this day, I am left with the impression that there were cases which I perhaps should have won but didn’t because His Honour was very keen to ensure that, notwithstanding our friendship, I was suitably professionally chastened from time to time by hissing out unfavourable decisions!

I might add there are judges in the Court of Appeal who attend to the very same chastening without regard to any particular level of friendship.

Ultimately of course, being a sensitive soul, His Honour Judge Skoien kissed me (perhaps the kiss of death) by saying one day:

“Hughes, we have eaten together, we have socialised together, we have travelled together, we are quite good friends now. I am thinking of disqualifying myself from matters in which you are appearing.”

In an immediate horrified response I exclaimed:

“For God’s sake don’t do that – the judges that hate me don’t disqualify themselves!”

God willing, in the future there will be maintained a formal friendship between the Bar and the Bench, particularly when those institutions are in the custody of the likes of the present Chief Justice and Mr Douglas S.C. There will also be less formal friendships between barristers and judges.

Inevitable there will be animosity too. Such is the nature of an adversarial system which by its nature is imperfect — only because it exists to serve imperfect creatures and, let us be frank, because it is manned by, generally well-meaning, but imperfect creatures — all of us here tonight.

If I may, in conclusion, be permitted a few gentle observations.

In this era the law and legal processes are under attack:

(a) first, by a media which is more interested in short term sensationalisation, than even a medium term search for the truth; and

(b) second, by Governments which by their actions (particularly underfunding) fail to recognize the importance of a well run and respected Court system.

At the risk of sounding like an aging black soul singer it seems to me that it is important that the relationship between the Bar and the Bench, in such times, be built on respect.

At this point I should probably burst into a few lines from the song made famous by Aretha Franklin of the same name, but I won’t (although I don’t wish to discourage Justice Chesterman from singing or dancing as part of his act).

As part of that matrix of respect, all I ask of you, the members of the Bench here tonight, is that you bring to your presence in court not just a firmness to protect the resources of the Court and dispose of matters quickly but also a special patience and a judicial bearing.

There is no good reason for judges not to act with politeness as well as firmness.

Most of you have reached your position because of your undoubted intellectual capacity and legal knowledge. Some of us at the Bar, doing the best we can, cannot necessarily emulate those qualities.

As I said to some colleagues recently, I am often put in mind of those wonderful opening words of F. Scott Fitzgerald’s “The Great Gatsby”:

In my younger and more vulnerable years my father gave me some advice that I have been turning over in my mind ever since.

“Whenever you feel like criticizing anyone” he told me, “just remember that all the people in this world haven’t had the advantages that you’ve had”.

There is no doubt in my mind that the best results, in terms of serving the true interests of the community which relies upon the legal system under which we operate, are likely to be wrought through cooperation between the Bar and the Bench.

I think, in the adversarial system in which we work, the intellectual process is better served by the Bench, attempting to assist competing counsel to refine the competing arguments to their highest form, rather than denigrating one or other, or both, of the arguments without some careful, albeit perhaps limited, investigation.

It is when arguments and propositions undergo scrutiny by such an interactive process, conducted with civility, that they can be properly refined and then properly exposed – revealing their merits and their inadequacies.

That said, there is no doubt that the barristers of Queensland are lucky to have hard working judges and magistrates to assist us look after and defend our clients’ rights and interests (and to feed our families!)

Ladies and Gentlemen I ask you to be upstanding and toast our friends the Judiciary.

This author has experience of practice both in Australia and the United States, as well as current experience at an academic level. These experiences reflect in the way he looks at issues, both from the academic and the practical perspective.

By analysing case management within complex civil litigation, we are able to see the big picture, ie, the effect of case management magnified by the issues involved in complex civil cases, as against the little picture, namely, case management in what I will call, day to day civil litigation where this might not be so apparent.

We in Queensland now take for granted that civil litigation preparation, of the smallest or most complex case, brings with it the concepts of mediation, discovery and case management generally, topics which are considered in great detail by the author.

Some States are better than others in recognising the importance of mediation and the necessity that a mediator is suitably qualified and experienced to perform their functions in any particular matter.

Several years ago I was involved in a matter in another State where the judge with conduct of the case management, ordered, without giving the parties the opportunity to be heard, that we were to attend in that State for a mediation to be conducted by a Court Registrar. This was a matter involving a damages claim of over $20M.

The mediator told us that she was conducting her first ever mediation. She seemed to be more interested in the novel she was reading. And, on one night, she asked us if we minded her leaving early as she had a card game to attend. Needless to say the mediation failed to achieve any resolution and the matter subsequently went to trial and appeal, and presently is on appeal to the High Court.

This book compels us to think. I do not believe that the author expects us to necessarily accept his points of view but, rather, as do the best academics, he poses problems and possible solutions then leaves the issues for us to resolve.

I will identify one particularly thought provoking issue which is considered. It relates to the question of the extent to which a judge can be involved in the case management but still be seen to have retained his or her impartiality when it comes to the hearing. This topic appears at page 240 under the heading, “Discretion, Loss of Impartiality and Bias”. It commences with a comment from Professor Judith Resnick published in the 1982 Harvard Law Review and then compares her comments with those of, in particular, the former Chief Justice of the High Court, (Murray Gleeson AC, QC) who said in May 2000:

“….it is of the essence of the common law system of justice that the ultimate outcome of a trial, civil or criminal, is to be determined by a decision maker whose role is conspicuously neutral and independent of the parties”.¹

We can all understand that the more the judge who manages the case, descends into the arena, the more challenging the task of both remaining, and manifestly demonstrating that he or she remains, objective and able to bring a neutral mind to the hearing itself.

We do need to be careful not to take too much to heart, United States’ experiences, for as the author reminds us, judges there have a much greater hands on role than here and the possibility of an appearance of partiality by an American judge may be more likely than in Australia.

In summary I strongly recommend this book to practitioners who engage in civil litigation. It gives us the opportunity to re- consider the various mechanisms contained in the UCPR and to better appreciate our role whether acting for a plaintiff or a defendant. It reinforces that mediation has its place in case management. It gives us a further insight into the new Federal Court Rules and the wide discretion given to Federal Court judges, going as far as permitting them to waive those rules where they consider it necessary. The book also reminds us of the importance of pleadings, of the restrictions that apply to tools such as discovery, (imagine an action in which the cost of discovery is counted in the millions of dollars); and of the wide discretion in relation to interrogatories.

Case Management and Complex Civil Litigation also reminds us that the ability of either side to seek summary judgment is also a necessary tool in case management.

Finally on the subject of discovery, the book contains a very informative discussion about the nature of documents in the electronic age and how, for example, word documents contain additional electronic information such as who created them, who edited them, what alterations were made etc. If you, like me, did not recognise the acronym ESI, then you, like me, need to study Chapter 4, headed, “Discovery in the Electronic Age”. This chapter serves to better educate us as to what form of documents, electronic or otherwise, fall under the banner of “discoverable”.

 

Footnotes

1. Managing Justice in the Australian Context, ALRC Conference 19^th May 2000.

His Honour apparently had tried everything to manage the plight of a defendant caught in the labyrinth of the criminal system in Cairns. Exasperated His Honour exclaimed:

“I’ve tried everything around here to get work done. People in custody should be given priority.  I’ve tried politeness, I’ve tried snide comments.  I’ve tried everything and nothing works, so I’m giving humour a chance, and I’d like to see whether that works because there shouldn’t be all this mucking around. When someone’s in custody in a town the size of Cairns, where we have one little building, insignificant in the scheme of things in the world – even insignificant in the scheme of things in Cairns – that we have to go through this ridiculous rigmarole.”

Before this, His Honour reportedly likened the plight of a defendant to a classic tale of Spike Milligan. It reminded him of one classic scene in particular, saying:

In fact, the book goes even further.  There’s a classic scene later on where after the border between Northern and Southern Ireland is moved quite mysteriously, that the IRA are trying to smuggle guns back into Ireland from the northern part, masquerading as Dan’s body in a coffin, and they’re stopped by an eager civil servant on the border who says, “You can’t bring that in here unless you’ve got a visa.  And it has to be renewed for every remaining year of his life.” That just seems to me to be what’s going on here.  And, you know, when I – I just can’t believe that people rot around in custody for months and months at a time while we wait to get things done here.  And I thought again of Spike Milligan.  He was famous for the Goon scripts, and I thought if Spike was still alive today he could write one around here, call the case “The dreaded case of the transmitted summary charge”. And it would’ve been up there with the classics like the Batter Pudding and the rest of them.  Because it’s just farcical what’s happening.  And I cannot, as a human being, understand what’s going on.”

His Honour then set about delivering his dose of humour as his last resort.  Indeed, he sought to emulate the tone of the Goon series by writing his own script describing the plight of a defendant in the Cairns court system.  He said:

So, the moral of the story is: when all else fails turn to judicial humour.  We’ll have to wait and see if everyone lives happily ever after or whether, in the end, the story is really a sad tale clothed with cruel irony and sarcasm.

Dean Morzone

In the normal course of the administration of a deceased estate, Probate is granted by filing an application for probate or letters of administration supported by an affidavit — see Chapter 15, Part 3 UCPR.

Rule 602(2) UCPR requires the affidavit to exhibit the original Will, any Codicil and any other document that may be a Will or Codicil.

It is not uncommon for such testamentary instruments (hereafter referred to as the Will), to be either lost or missing on the deceased’s death.

At common law, there is a presumption that a testator destroyed a Will with the intention of revoking it, where the Will was in the custody of the testator and it is either lost or missing on the death of the testator — Welch v Phillips (1836) 1 Moo PCC 299; 12 ER 828 per Lord Wensleydale at 302 (“Moo PCC”) where his Lordship said:

“If a will, traced to the possession of the deceased, and last seen there, is not forthcoming on his death, it is presumed to have been destroyed by himself; and that presumption must have effect, unless there is sufficient evidence to repel it. It is a presumption founded on good sense; for it is highly reasonable to suppose that an instrument of so much importance would be carefully preserved, by a person of ordinary caution, in some place of safety, and would not be either lost or stolen; and if on the death of the maker it is not found… it is in a high degree probable, that the deceased himself has purposely destroyed it”.

The presumption also applies to documents incorporated by reference into a will — Guest v Webb [1965] VR 42; Re Holmes [1934] QWN 20.

The presumption may be rebutted by the surrounding circumstances or from the contents of the last known Will — McCauley v McCauley (1910) 10 CLR 434 and the standard of proof is the ordinary civil standard – on the balance of probabilities — Whiteley v Clune (No.2) The Estate of Brett Whiteley (13 May 1993 unreported — Supreme Court of NSW — BC 9301902); In the Estate of Wipperman; Wissler v Wipperman [1953] 2 WLR 706; Cahill v Rhodes [2002] NSWSC 561 at 56.

Additionally, it may be possible to rely upon legislation dispensing with the formalities for a valid Will, to allow an informal document such as an unexecuted copy of a Will, to be admitted to Probate if the court is satisfied that the document was prepared by the deceased and intended to be testamentary.

Section 18 of the Succession Act 1981 (Qld) provides:

“18 Court may dispense with execution requirements for will, alteration or revocation

(1) This section applies to a document, or a part of a document, that–

(a) purports to state the testamentary intentions of a deceased person; and

(b) has not been executed under this part.

(2) The document or the part forms a will, an alteration of a will, or a full or partial revocation of a will, of the deceased person if the court is satisfied that the person intended the document or part to form the person’s will, an alteration to the person’s will or a full or partial revocation of the person’s will.

(3) In making a decision under subsection (2), the court may, in addition to the document or part, have regard to–

(a) any evidence relating to the way in which the document or part was executed; and

(b) any evidence of the person’s testamentary intentions, including evidence of statements made by the person.

(4) Subsection (3) does not limit the matters a court may have regard to in making a decision under subsection (2).

(5) This section applies to a document, or a part of a document, whether the document came into existence within or outside the State.”

If this course is adopted, it will still be necessary to address the principles governing the admission of lost or missing Wills including the rebuttal of the presumption of destruction animo revocandi.

In some jurisdictions, for example South Australia, there are specific provisions in the rules of court that allow for an applicant to apply for an order admitting a photocopy of the deceased’s executed Will to Probate — Rule 68 of the Probate Rules 2004 (SA) and see In the Estate of Jack Hamilton Gerard Deceased [2007] SASC 362.

There is no comparable provision in the UCPR in Queensland.

In the recent decision of his Honour Justice McMeekin in Price v Tickle & Ors [2011] QSC 206 (delivered on 3 August 2011), the deceased had left more than one will but the most recent of which could not be located. The question arose whether the previous Wills should be presumed revoked.

At paragraph 10 of the judgment, his Honour applied the reasoning of Powell J in Whiteley v Clune (No.2) The Estate of Brett Whiteley (13 May 1993 unreported — Supreme Court of NSW — BC 9301902) and held that the present position in Queensland in relation to lost or missing wills was as follows:

“… 1. although, where a Will is traced into the possession of the testator and is not forthcoming on his death, there is a presumption that he destroyed it animo revocandi, the presumption may be rebutted; 2. the strength of the presumption depends upon the character of the testator’s custody over it (Sugden v Lord St Leonards (1876) LR 1 PD 154; Allan v Morrison [1900] AC 604; McCauley v McCauley (1910) 10 CLR 434); 3. where the Will makes a careful, and complete, disposition of the testator’s property, and there are no other circumstances to point to a probable destruction, animo revocandi, by the testator, the presumption is so slight that it may be said not to exist (Sugden v Lord St Leonards (supra); Finch v Finch (1867) LR 1 P and D 371); 4. where a Will is lost or destroyed, and the presumption of destruction, animo revocandi, either, does not arise, or, is rebutted, its contents may be proved by parol evidence. The ‘rules’ laid down in Sugden v Lord St Leonards (supra) are as follows: — a. the contents of any lost instrument, including a will, may be proved by secondary evidence; b. written and oral declarations of a testator made before, or after, the execution of the will are admissible as secondary evidence of its contents; c. the evidence of a single witness, although interested, is admissible to prove the contents if his veracity and credibility are unimpeached; d. Probate may be granted of so much of the contents as may be proved, even though proof is not available of the entirely (sic).” 

In Frizzo v Frizzo [2011] QSC 107 (delivered 12 May 2011), his Honour Justice Applegarth was concerned with the admission to Probate of a photocopy Will where the original could not be found.

His Honour at paragraph 161, adopted the test propounded by Justice Campbell in Cahill v Rhodes [2002] NSWSC 561 at 55 where his Honour said that for a lost will to be admitted, five matters must be established:

1) That there actually was a Will or a document purporting to embody the testamentary intentions of a deceased;

2) That document revoked all previous Wills;

3) The presumption that when a Will is not produced it has been destroyed must be overcome;

4) There must be evidence of its terms; and

5) There must be either evidence of due execution or that the deceased intended the document to constitute his or her Will.

As a matter of practice and procedure, it is generally a condition of the grant of Probate that the applicant for probate of a lost Will has obtained the consent of all parties interested in the estate.

However, there is a line of authority that suggests that this is not an absolute condition — In the Goods of Pearson [1896] P 289; In the Goods of Apted [1899] P 272; Re Daniels [1904] QWN 26; Re Baynton [1908] QWN 46; Re Gardon [1918] QWN 7 and Re Henderson [1996] 1 Qd R 249.

It is submitted that in addition to the issue of consent of the interested parties, an applicant propounding a photocopy Will should also establish the following matters:

1) the circumstances surrounding the loss of the original Will;

2) the efforts made to find the original Will;

3) the accuracy of the copy of the Will put forward for proof;

4) whether advertisements have been published for the missing Will and whether any reply has been received; and

5) lodgment of a complete copy of the document the Court is asked to admit to Probate.

While the presumption of revocation is one of the more difficult obstacles to overcome in such proceedings, it is nevertheless a rebuttable presumption.

The most important factor to establish in such proceedings is that the Will being propounded in fact reflects the testator’s true testamentary intentions.

Joseph Jacobs

Equity Chambers

Cedric Hampson was the leader of the Bar in Queensland for an extraordinary time, nearly three decades. Mr. Hampson was always a powerful cross-examiner, able to exploit any weaknesses in the testimony of a witness. He was also a master of narrative.

Occasions of Sin is set on the Queensland Gold Coast and explores a complex set of interactions between criminals and police.

The story centres on a teenager, Gawain, whose innocence has been preserved despite the traumas he endured after his parents abandoned him as a child to a life in a hippy commune.

Gawain’s innocence is supported by a developing moral code based on Arthurian legend including the adventures and ideals of his namesake knight. Gawain is befriended by two hard core bikie twins and he swims vainly against a current which draws him deeper into a world of crime and violence.

Occasions of Sin is peopled by a range of characters from respectable seeming Sydney bosses; to local toughs; seedy car dealers who play both sides of the law; and policemen of varying shades of dishonesty.

Occasions of Sin is carefully crafted and well told. The action flows readily. As the narrative seems to be winding down to a predictable conclusion, the reader is struck by the devastating and unexpected final paragraph. As one recovers, one may claim to know just a little what it felt like to be cross-examined by the great Hampson QC.

History and Framework:

While in the 17th century, in the time of de Cervantes, recreation was as popular as it is now, prosperity, shorter working hours and modern technology have served to encourage the population at large to engage in ever more risky recreational pastimes.

The advent of fast cars and boats, and equipment that enable one to cycle, skate, climb, or dive in a manner that was unheard of 50 years ago, has coincided with a change of attitude in the courts.

Such change has been underscored too by general education.  Courts impress the general population, often even the bare teenager, with significant intelligence in order to make decisions about recreational participation and choice.

Finally, the burgeoning consciousness of human rights in the west has embedded in liability jurisprudence the critical value of voluntary choice on the part of those who engage in any lawful activity, but in particular voluntary recreational activity fraught with risk of injury.

What constitutes recreational activity ought not be viewed narrowly.  

Organised sport is but one form of recreation.  So too is playing cards, walking, prayer and occasionally shopping.¹

Add to those the more vigorous activities of skateboarding, bicycle riding, surfing, public-private-waterhole patronage (including diving into unknown depths), gym work, jogging (including by night), recreational driving (including by night and/or when the driver is inebriated), brothel patronage (including without condom use), recreational diving, recreational travel (including to unusual destinations), water or snow skiing, hiking, trekking (eg Kokoda trail), cross-country motorcycling and four-wheel driving (usually on a beach).²

It is one thing to engage in a recreational activity per se.  The critical feature, as some of the lastmentioned items with parenthesis underscore,  is the circumstances in which the activity is undertaken.  Such circumstances can transmute the character of the risk entailed from innocuous to dire.

The Law dehors the Ipp legislation:

So much for the general philosophy.  What precisely do the courts say?

For  the moment I ignore consideration of the legislative changes that have intruded into the general law, in particular early in the millennium with the enactment of the Ipp legislation in the states and territories.  More on that below.

Historically there has been curial pushback against exempting a putative tortfeasor from liability on the basis of volens.  Thus, a person voluntarily participating in an activity such as boxing³, water-skiing⁴, jet skiing⁵, hot-rodding on a country road⁶ and like activity does not assume the risk of all acts of negligence committed in the course of the activity.⁷

No such pushback is to be discerned in the adjudicating duty of care or breach thereof.

In the sphere of organised sport, the best example of absence of a finding of no duty of care is the rugby case of Agar v Hyde & Worsley.⁸  In finding there no duty of care on the part of the rugby organisers, Gaudron, McHugh, Gummow and Hayne JJ focused on the policy or normative issue of autonomy:

[90] The decision to participate is made freely. That freedom, or autonomy, is not to be diminished. But with autonomy comes responsibility. To hold that the appellants owed a duty of care to Mr Worsley would diminish the autonomy of all who choose, for whatever reason, to engage voluntarily in this, or any other, physically dangerous pastime. It would do so because it would deter those who fulfil the kind of role played by the IRFB and the appellants in regulating that pastime from continuing to do so lest they be held liable for the consequences of the individual’s free choice. The choices available to all would thus be diminished.

[91] Separate questions may arise about school age children whose decisions are made or affected by others but those questions need not be considered in this case.

A decision at the point of duty, however, is infrequent.  If a plaintiff  comes to grief on adjudication, that is more likely to occur at the point of breach.  In Woods v Multisport Holdings Pty Ltd⁹, Hayne J observed in the case concerning an indoor cricket injury:

[144] The trial judge found that the risk of being hit (by the ball, by a bat, or by another player) was an obvious risk of the sport. When one of the recognised techniques of the sport is to bowl the ball at the player who is batting at such a speed that it cannot be hit, the risk of being hit by the ball when batting is indeed obvious. It is no less obvious that the risk of injury would vary according to the part of the body that is hit, according to the force of the blow, and according to what it was that struck the blow – the ball, the bat, or another player. And in a fast moving and energetic game like indoor cricket, a collision with any of the equipment used in the game or with another player may be very serious indeed. A blow to the head or to the region of the eye could well cause very serious injury – more serious than a similar blow to some other part of the body. That a player could suffer serious injury, even permanent and disabling injury, by playing this sport was evident to all participants in it. Reasonable care did not require the respondent to warn participants of that. Nor was there any reason to single out one form of injury and warn of that. There is, therefore, no reason to disagree with the trial judge’s conclusion that reasonable care did not require the respondent to warn of the specific risk of eye injury.

Outside the sphere of organised sport, occurring usually in the instance of occupation of land, one finds like results.  Examples are the High Court decision of  RTA (NSW) v Dederer¹⁰, and in the United Kingdom Tomlinson v Congleton Burrough Council.¹¹

In Tomlinson, Lord Hoffman, a champion of human rights, said in a case of catastrophic injury resulting from diving into a lake on Council land:

[45] I think it will be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake upon the land. If people want to climb mountains, go hang gliding or swim or dive in ponds or lakes, that is their affair. Of course the landowner may for his own reasons wish to prohibit such activities. He may think that they are a danger or inconvenience to himself or others. Or he may take a paternalist view and prefer people not to undertake risky activities on his land. He is entitled to impose such conditions, as the Council did by prohibiting swimming. But the law does not require him to do so.

…

[47] It is of course understandable that organisations like the Royal Society for the Prevention of Accidents should favour policies which require people to be prevented from taking risks. Their function is to prevent accidents and that is one way of doing so. But they do not have to consider the cost, not only in money but also in deprivation of liberty, which such restrictions entail. The courts will naturally respect the technical expertise of such organisations in drawing attention to what can be done to prevent accidents. But the balance between risk on the one hand and individual autonomy on the other is not a matter of expert opinion. It is a judgment which the courts must make and which in England reflects the individualist values of the common law.

So much for the doom and gloom.  It is not every case involving arguably dangerous recreational activity that a plaintiff is destined to lose.  

Leading into a consideration below of the statutory incursions  into the liability jurisprudence, let  me suggest three issues which warrant focus by a lawyer acting for a  plaintiff injured in the course of what might otherwise be characterised as a dangerous recreational activity:

• identification of a contract for service provision which hopefully affords a prescriptive obligation in favour of the plaintiff or at least attracting statutory obligations of providing safe equipment, services fit for purpose or at least due care and skill.

• collection of promotional or advertising material by the service provider playing down by benign description the risks entailed in the activity;

• canvassing evidence of:

• activity equipment, apparently safe in quality, being defective for some reason;

• established rules being departed from,

As to the last, to borrow from the statutory examples in s 13 of the Civil Liability Act 2003 (Qld) (see below), irrespective of whether a contract for equipment or  facility use is entered into, where the apparently sound bungy cord breaks because it has flaws through over-use, or  go-kart has a mechanical defect, in either case unknown to the user plaintiff, there is real prospect for a successful case despite the danger entailed in the activity in question.

Commonwealth Provision:

I propose now to focus on statutory remedies which are available to those plaintiffs fortunate enough to have the benefit of a contract founding their participation in  the recreational activity in question.

Those remedies are sourced in what was until 1 January 2011 the Trade Practices Act 1974 (Cth) (“TPA”), and after that date the Competition and Consumer Act 2010 (Cth) (“CCA”).  In any particular case  investigation need be undertaken as to which Act applies to the case at hand.

Prior to 1 January 2011 some of the states and territories also provided relevant contractual remedies in their fair trading legislation.¹²  Following enactment of the CCA these have been largely subsumed within the Commonwealth legislation.

There are some significant substantive differences between the TPA and CCA.  For example, the TPA applies only to corporate defendants however the CCA is not so constrained.  I do not intend to descend to these issues further for the purpose of this paper.

In the TPA the critical provisions are ss 68 to 74.  In particular it is important to note about these provisions:

• the contractual warranties in s 74 (if established) were two in number, namely that “services will be rendered with due skill and care and that any material supplied in connection with those services will be reasonably fit for the purpose for which they were supplied” and that “the services supplied under the contract for the supply of the services and any materials in connection with those services will be reasonably fit for (the expressed or implied) purpose (made known)”.
• s 74(2A), from 2004, applied the law of a state or territory “to limit or preclude liability for the breach” any warranty implied under s 74.
• s 71 implied a condition that “goods supplied under the contract for the supply of goods are of merchantable quality” and that such goods “are reasonably fit for (the expressed or implied) purpose (made known)”.
• there was no analogue of s 74(2A) in s 71.
• s 68 and 68A, in many instances, precluded reliance on an exclusion clause excluding the said implied warranty under ss 71 and 74.
• as to s 74 alone, under s 68B in the case of “recreational services”, meaning services “that consist of  participation in … a sporting activity or similar leisure pursuit” or any other activity that “involves a significant degree of physical exertion or physical risk and is undertaken for the purpose of recreation, enjoyment or leisure”, liability for personal injury (only) could be contractually excluded.

Three further points ought be made about these provisions.

First, as to s 68B, one does frequently confront exclusion clauses, but  generally they are poorly or inadequately drafted¹³, and inexorably purport to  exclude both property damage and personal injury thereby divorcing the exemption clause from protection.¹⁴

Second, s 74(2A) presents no effective avenue for operation of the Ipp legislation (canvassed below) or contributory negligence in respect of a claim for breach of a s 71 warranty, or even a s 74 warranty to the extent that the same was breached on account of materials or services supplied being reasonably for a stated purpose.

The lastmentioned conclusion derives because a breach of a prescriptive (whether statutorily implied or contractually agreed) warranty would not ordinarily invoke any liability provision1⁵ of the Ipp legislation because the provisions of the same are (for the most part) expressly operative apropos  breach of a conventional duty to exercise reasonable care.  This is exemplified in the recent decision of French v QBE Insurance (Australia) Limited.¹⁶   There the point was made that breach of  a warranty of fitness for purpose is  strict in character.

See also Gharibian v Propix Pty Ltd [2007] NSWCA 151 at [49]-[64] per Ipp JA — a case of an injury on a toboggan run.

Third, s 74(2A) can operate to trump exclusion clause vitiation under s 68, but is of no effect in any event insofar as the Ipp legislation provision merely allows of a particular contractual outcome, rather than being self-executing.

The relevant authority in the lastmentioned regard is that of the High Court in Insight Vacations Pty Ltd v Young.¹⁷  The court said there of Civil Liability Act 2002 (NSW) s 5N after noting at [24] that ss 68A, 68B and 74(2A) qualified the avoiding provisions of s 68:

[26] …  s 74(2A) should not be construed as picking up and applying as a surrogate federal law a provision, such as s 5N of the Civil Liability Act, which in its terms does not limit or preclude liability for breach of contract. In terms, s 5N does no more than permit the parties to certain contracts to exclude, restrict or modify certain liabilities and limit the operation of any other part of the written law of New South Wales that would otherwise apply to avoid or permit avoidance of such a term. That is not a law of the kind described in s 74(2A) of the TPA. Section 68 therefore operated to render the exemption clause void in so far as the clause applied to the warranties implied by s 74.

Such ratio, by parity of reasoning, would arguably extend to the risk warning provision contained in s 7M of the NSW Act and its analogues, but not the dangerous recreational activity exemption in s 5L of the NSW Act and its Queensland, Western Australian and Tasmanian analogues (all of which I come below).  The former requires a risk warning to be given.  The latter, in contrast, is self-executing.  This awaits judicial determination.

The CCA is somewhat differently structured but in essence, for relevant purposes, is broadly similar to the above provisions of the TPA:

• most of the relevant provisions are contained in the CCA schedule 2 known as the Australian Consumer Law (“ACL”).
• the various former TPA warranties now take the form of statutory “guarantees” and are to be found in Division 1 of Part 3-2 of the ACL, in ss 51 to 68.
• in terms the guarantees are somewhat easier to apply to any particular case, albeit only in respect of a “consumer” as defined.
• in respect of the analogue of s 74, insofar as the same prescribes warranties, the same are to be found in ACL ss 60 and 61, they being in Subdivision B of Division 1 of Part 302, with a replication of TPA s 74(2A) to be found in ACL s 275.
• TPA s 68B is largely replicated in CCA s 139A.
• an action for damages for failure to comply with a guarantee is also statutory in form and is provided for by ACL s 267 and following.

For convenience I ought set out the said ACL s 275 (the successor of TPA s 74(2A)):

275   Limitation of liability etc.

If:

(a)  there is a failure to comply with a guarantee that applies to a supply of services under Subdivision B of Division 1 of Part 3-2; and

(b)  the law of a State or a Territory is the proper law of the contract;

that law applies to limit or preclude liability for the failure, and recovery of that liability (if any), in the same way as it applies to limit or preclude liability, and recovery of any liability, for a breach of a term of the contract for the supply of the services.

Thus even absent operation of an exclusion clause utilising CCA s 139A (the successor of TPA s 68B), the Ipp legislation law as to causation, obvious risk, dangerous recreational risk exemption, criminal liability exemption,  contributory negligence (including for alcohol consumption) and damages are operative.

The above three points made in respect of the TPA apply mutatis mutandis to the CCA.

State and Territory Provision:

The Ipp legislation has been enacted in the various states and territories, albeit not uniformly.

I propose, at this point, to focus upon the Ipp legislation which is founded on statutory “obvious risk” and in turn, in those states and territories where it applies, the concept of “dangerous recreational activity” exemption.

All of the states (but neither of the territories) make provision for statutory “obvious risk”, and in turn cognate warning¹⁸ and volens defence provisions.  As an adjunct to such “obvious risk” provision, however, only New South Wales, Queensland, Western Australia and Tasmania make provision for dangerous recreational risk exemption.

Characterisation of a risk which materialises as a statutory “obvious risk”, even short of such exemption, has potential to defeat a claim arising from engagement irrespective of the characterisation of the relevant activity as a “dangerous recreational activity”.

It is important, therefore, on either basis, to treat first the issue of such statutory “obvious risk”.

There is no question that in respect of any allegation pertaining to or arising out of statutory “obvious risk”, including any statutory exemption arising therefrom, the obligation to plead and prove the same lies with the defendant not the plaintiff.

(a)    Statutory Obvious Risk:

The NSW Act is essentially representative of the various Ipp statutes in this regard.¹⁹

Section 5F of the NSW Act provides:

(1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.

(2) Obvious risks include risks that are patent or a matter of common knowledge.

(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.

(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.

Even without resort to authority it can be seen that such provision is protean in its expression, such that a risk even with a low probability of crystallising, or even not conspicuous or physically observable, may be characterised as “obvious” in the requisite sense.

Importantly, however, risks which are truly hidden, and could not be reasonably expected or apprehended likely to occur in the event of reasonable care being exercised, fall outside the statutory embrace.

That, it is submitted, is implicit in the language of s 5F above. Furthermore, that this is so  is pointed up by express portions of the Vic Act and the Qld Act.

The Vic Act, in s 53, provision recites:

(5) To remove any doubt, it is declared that a risk from a thing, including a living thing, is not an obvious risk if the risk is created because of a failure on the part of a person to properly operate, maintain, replace, prepare or care for the thing, unless the failure itself is an obvious risk.

The Qld Act, in s 13, contains a similar provision in subs(5) and likewise affords statutory examples which inform this outcome: 

Examples for subsection (5)—

1  A motorised go-cart that appears to be in good condition may create a risk to a user of the go-cart that is not an obvious risk if its frame has been damaged or cracked in a way that is not obvious.

2  A bungee cord that appears to be in good condition may create a risk to a user of the bungee cord that is not an obvious risk if it is used after the time the manufacturer of the bungee cord recommends its replacement or it is used in circumstances contrary to the manufacturer’s recommendation.

The import of these statutory qualifications inform the construction  provisions of the states bereft thereof.

In Council of the City of Greater Taree v Wells²⁰ the relevant law as to characterisation was well summarised by Beazley JA:

[75] Whether a risk is obvious is determined objectively, having regard to the particular circumstances in which the respondent (as the relevant plaintiff) was in: see Fallas v Mourlas [2006] NSWCA 32, where Ipp, Basten and Tobias JJA determined that “the position of the plaintiff” comprehended the particular circumstances in which the risk materialised and the harm was suffered.

[76] The question of obvious risk requires a determination of whether the appellant’s conduct involved a risk of harm which would have been obvious to a reasonable person in the position of the respondent: Carey v Lake Macquarie City Council [2007] NSWCA 4 at [93]; (2007) Aust Torts Reports 81-874. In Great Lakes Shire Council v Dederer; Roads & Traffic Authority of NSW v Dederer [2006] NSWCA 101 ; (2006) Aust Torts Reports 81-860 Ipp JA (Handley and Tobias JJA agreeing) stated that the position of the plaintiff will include the plaintiff’s knowledge and experience of the relevant area and conditions (see Ipp JA at [152]). (The question of obvious risk was not dealt with by the High Court in Roads and Traffic Authority of NSW v Dederer; see also Santow JA in C G Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 at [106]—[108]). In Fallas v Mourlas Basten JA, at [153], stated that for the purposes of s 5F, it was necessary to identify the circumstances and extent to which “the aspects of ‘the position’ of the plaintiff” are to be ascribed to the reasonable person.

Thus a local natural danger (eg, surf rips, crocodiles, snakes) may be an “obvious” risk to local but not a foreign tourist.

In the case of child, and probably intellectually disabled plaintiffs also, a less onerous test is imposed.²¹

The trend in the diving cases to find the risk of injury is so “obvious”.²²  See, likewise, the golf case of Pollard v Trude.²³

A risk which is not obvious at the commencement of the activity may become so during the activity, such as to found the statutory characterisation.²⁴

Characterisation of a risk of harm as an “obvious risk” is not self-executing as an exemption or curtailment of liability, but rather merely a foundation for potential operation
of other provisions of the Ipp legislation.  Such characterisation certainly does not “automatically lead to a finding of no breach of duty”.²⁵ 

The relevant provisions which are triggered are those of no obligation to warn (ordinarily), assisting proof of voluntary assumption of risk and the dangerous recreational risk exemption.

For convenience, given my topic, I will deal with the first and third of these only as they are the ones most likely to be operative in a dangerous recreational risk case.

(b)    Warning:

Again, the NSW Act provision is representative of that of the other states.²⁶

Section 5H of the NSW Act provides:

(1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff.

(2) This section does not apply if:

(a)  the plaintiff has requested advice or information about the risk from the defendant, or

(b)  the defendant is required by a written law to warn the plaintiff of the risk, or

(c)  the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant.

(3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection.

The critical thing to note about this provision is that (subject to the stated exceptions) it only excludes an obligation to warn of the risk to the extent that that is otherwise found by the court to be a measure that a reasonable person in the position of the defendant would adopt in response to the risk.

In the event the court goes further and finds that there were other (non-warning) measures which were apt in reason, this provision is of no assistance to a defendant.²⁷

Thus, in proving a case where the prospect of an “obvious risk” defence will be sought to be made out by the defendant, the plaintiff’s lawyer should be careful to lead evidence, and otherwise plead and conduct  the case on the basis that non-warning measures were apt in the exercise of reasonable care.

One can well imagine cases where, for example, occupiers ought take steps transcending  warning,  say  by preventing persons from coming onto their property, where persons are likely to engage in dangerous recreational activity thereon.  Such instances, it is submitted, however, will be infrequent.  Alternatively they would modify the areas accessed or supervise their use.

There is little doubt that in the event that the case of Dederer, upon passage to the High Court in respect of one of the defendants, if it had fallen to be decided under the NSW Act in respect of that defendant, inexorably and in any event would have been concluded adversely to the plaintiff on the basis of no duty to warn.  That is precisely what occurred in Dederer in the Court of Appeal concerning the other defendant in respect of the cause of action against whom the NSW Act applied.

(c)    Dangerous Recreational Activity Exemption:

The Ipp Report²⁸ addressed this issue at paras [4.11] to [4.25].

The Report authors opined that distinction between recreational and other activity, for liability disposition, was justified on the basis that participation in recreational activity is usually voluntary and ‘wholly or predominantly for self-regarding reasons’.²⁹

Further, the report purported to identify the existence of ‘strong community support’ for implementation of a strong form of personal responsibility in circumstances of dangerous recreational activity.³⁰

Again, but subject to the caveats to uniformity identified below, the NSW Act is representative.³¹

NSW Act ss 5J, 5K and 5L provide:

5J Application of Division

(1) This Division applies only in respect of liability in negligence for harm to a person (the plaintiff) resulting from a recreational activity engaged in by the plaintiff.

(2) This Division does not limit the operation of Division 4 in respect of a recreational activity.

Definitions 5K In this Division:

dangerous recreational activity

means a recreational activity that involves a significant risk of physical harm.

obvious risk

has the same meaning as it has in Division 4.

recreational activity

The caveats to uniformity are:

• the Qld Act applies only to “negligence”, not “breach of duty” which is more widely defined to include claims for duty owed under contract.  In  Queensland a plaintiff always looks for and pleads contract to found liability.
• the WA Act refers only to “liability” and although not clearly defined it probably only extends to liability for breach of duty of care whether in contract or in tort.

A critical question lies in characterising the activity in question as a “dangerous recreational activity”.

The NSW Court of Appeal summarised the relevant considerations well, by reference to the authorities,  in Lormine Pty Ltd Xuereb³²:

[31] The principles as to how an activity is to be characterised to determine if it is a “dangerous recreational activity” (ie a recreational activity that involves a significant risk of physical harm) are discussed in Falvo v Australia Oztag Sports Association [2006] NSWCA 17 and Fallas v Mourlas [2006] NSWCA 32. The defendant bears the burden of proof in establishing a defence under s 5L. The question is to be determined objectively and prospectively. The standard lies somewhere between a trivial risk and one that is likely to occur. Significance is to be informed by the elements of both risk and physical harm. The characterisation must take place in the particular context in which the plaintiff places himself or herself (see Fallas at [38]—[50], [92]). Accordingly, it is irrelevant for the appellants to rely upon evidence from the plaintiff about the risks of crossing the English Channel.

Thus, for example, a rough unlit headland path negotiated by night, but not by day, is likely to constitute engagement in a “dangerous recreational activity”.

Lormine is an instructive case because it demonstrates the admissibility of representational and like evidence emanating from the defendant or others as to the activity in question.  There the plaintiff was a fare paying passenger on a dolphin watching cruise undertaken north of Forster in Central New South Wales.  The vessel went into open water and, through negligent navigation, was swamped by a rogue wave, leading to the plaintiff’s injury.  She did not engage in swimming with dolphins but rather she remained on the vessel.

Mason P wrote:

[2] The respondent (the plaintiff) was in a group of approximately 20 adults and children who were enjoying a dolphin watching cruise on “Avanti” not far from shore just north of Forster on 29 November 2000. She and her husband had been encouraged to book a tour upon reading the shipowner’s brochure that relevantly stated:

Forster has its own unique pods of resident Dolphins which reside in the calm ocean waters 10 minutes offshore … .Dolphin Watch Cruises suit people of all ages. For the more adventuresome (adults-15 years and over) you will have the opportunity to get in the water and swim with our dolphins.

    …

[32] The first appellant’s brochure (extracted above) was available by way of admission as a categorisation of the gentle activity that the plaintiff and her children were being invited to engage in. There was nothing to suggest to the reasonable reader that the particular vessel would go so close to the wave zone or generally into conditions where getting swamped was one of the expected thrills of the cruise. The plaintiff said that she did not even expect to get wet when she went up to the bow.

[33] Section 5L applies whether or not the plaintiff was aware of the risk (see s 5L(2)). However, I do not accept the appellants’ submission that the trial judge determined the character of the activity by reference to the plaintiff’s subjective perception. Her Honour was entitled to assess the matter from the perspective of what the appellants had or had not represented would be involved.

(emphasis added)

Thus the finding of the trial judge in favour of the plaintiff  on a s 5L issue was affirmed on appeal.

The lesson here is that in any case where a lawyer is acting for such a plaintiff, one should elicit from the plaintiff, and defendant on disclosure, all promotional and advertising material (electronic or paper),  not only that which the plaintiff saw but also that which he or she did not hear or see or did not notice.  Each is relevant to the requisite characterisation.

By parity of reasoning, statistical evidence as to injury from the activity in question is admissible on this characterisation issue.

In Vreman & Anor v Albury City Council³³ each of the plaintiff s was injured after falling from a BMX bike when engaged in a bike jumping activity at a skateboard facility which was under the control of the defendant Council. A defence under NSW Act s 5L was made out after a finding characterising the bike riding activity as “dangerous recreational activity”:

[89] … (O)nce a rider has determined upon an activity commencing with an accelerated entry from the raised platform dropping to the flat concrete surface below, with the likely or anticipated need to negotiate a raised obstacle in the form of the fun box, and then perform a jump or other trick in the air, a risk of falling is created that is completely different to the same risk that arises from simply riding the bike on a flat surface. There was a risk in the former case that the jump or the trick would not go as planned and that the landing may lead to a fall. That risk had a real chance of materialising. Mr Vreman was an experienced rider and expressly acknowledged the existence of this very risk. Mr Morris also agreed, “if you make a mistake and have a fall you might hurt yourself”.

…

[92] One of the submissions made on behalf of Mr Vreman and Mr Morris was that in statistical terms it could not be said that BMX bike riding at purpose built facilities was dangerous. It was suggested that material to be found at page 82 of the Skate Facility Guide under the heading “How dangerous is skating” showed that injury from BMX bikes accounted for 158 of the 136,000 presentations for accident related injuries to Victorian Hospitals over a three year period, and that this was statistically insignificant and consistent with little danger. That was promoted as at least prima facie support for the proposition that BMX bike riding is not a dangerous recreational activity, especially if it is carried out in a purpose built facility. The Council’s response was that activities might be statistically “safe” but fundamentally dangerous. Although not cited as an example, one instance of this idea would seem to be recreational parachute jumping, which is not notoriously associated with unduly high rates of injury or death, but which could in my view only be described as a dangerous activity. Motorcar and motorbike racing would seem to fall into a similar category.

[93] In my opinion it would be an exercise in sophistry to conclude that the activities in which Mr Vreman and Mr Morris were each separately engaged were not dangerous recreational activities, even if the incidence of injuries was not particularly high or the degree of seriousness of injuries that were caused were not always or often catastrophic.

There is no linguistic reason in the fabric of the statutory definition which would confine the characterisation to sporting or like activity, it being sufficient that it be a “pursuit or activity engaged in for enjoyment, relaxation or leisure” (NSW Act s5K definition but with analogous provisions in the Qld Act, WA Act and Tas Act).

For that reason, each of the following persons, it is strongly arguable, is engaged in dangerous recreational activity:

• a passenger in a vehicle, driven by a grossly inebriated driver, who agrees to participate in an early morning recreational drive to a nearby lookout, which involves traversing a narrow and winding road.
• a late night street race driver together with any passenger or spectator of such person, particularly in relation to road conditions.
• a patron attending a stockcar racing event who, by permission, makes his or her way into the pits, beyond the safety barriers, to view the vehicles which are continually pulling in and out of such pits at high speed.
• a patron attending a sporting fixture who wears a tee-shirt bearing an emblem offensive to one of the participating teams and proceeds deliberately to stand among or sit with that team’s supporters.

The statutory exemption is engaged in the event of “the materialisation of an obvious risk” of a dangerous recreational activity engaged in by the plaintiff (NSW s 5L).

Notwithstanding this provision, it ought be noted that the legislation does not effect linguistic symmetry between the obvious risk which crystallises and the “significant risk” by which an activity is characterised as being a “dangerous recreational activity”.

In Fallas v Mourlas³⁴ Ipp JA held, in respect of the NSW Act, that a significant risk that converts a recreational activity into one which is dangerous permissibly may be entirely different from the risk that materialises.³⁵  Basten JA held to the contrary, saying that in order for s 5L to be engaged at least one of the significant risks must be the risk that materialises resulting in harm.³⁶

This issue remains live for final judicial decision but, in my view, the view of Ipp JA is to be preferred.  In truth, that view conforms even more comfortably with the slightly differently worded definition of “dangerous recreational activity” which exists in the Qld Act and the Tas Act, each of which defines the term as “recreational activity that involves a significant degree of risk of physical harm to a person”.

Finally, the exemption, once engaged, extends to all persons who may be sued in negligence for the harm.  It is not confined to the service provider, occupier or the like, but to any person who may be sued for contractual or tortious breach of duty (or in Queensland negligence per se) in respect thereof.

The common instance of the operation of the statutory exemption is in the diving cases.³⁷

(d)    Risk Warning:

I address this for completeness.

Each of  NSW Act s 5M, the WA Act s 5I and the Tas Act s 39  provides that a person does not owe a duty of care to another where the latter engages in recreational activity, in respect of a risk which was the subject of a risk warning to the plaintiff.  The Tas Act provision only protects “a public or other authority”.

Such statutory risk warnings historically³⁸, and under the Ipp legislation, are invariably unsuccessful as a means of avoiding liability.  Usually that is because the risk warning is wholly inadequate in content.

Belna Pty Ltd v Irwin³⁹ was a gym case, probably not involving dangerous recreational activity, but the point was well made by the court there in a case where the defendant unsuccessfully relied upon a risk warning:

[17] As regards s 5M(1), the appellant contends that the risk warning given to Ms Irwin was the following acknowledgment contained in the questionnaire she signed:

“I understand that Fernwood Fitness Centre is not able to provide me with advice in regard to my medical fitness and that this information is used as a guideline to the limitations to my inability to exercise. I will not hold this club liable in any way for the injuries that may occur while I am on the premises.”

[18] This acknowledgment by Ms Irwin herself did not warn Ms Irwin about any risk involved in the lunge or any other exercise she undertook. Therefore, it was not a risk warning in terms of s 5M.

To like effect, in the case of what would otherwise be characterised as a dangerous recreational activity.⁴⁰

Conclusion:

Suing for damages in respect of what might be characterised as a “dangerous recreational activity”  can itself a dangerous pastime  given the frequent lack of success in this sphere.

Apart from selecting the right case to run, serious consideration need be given to:

• identifying a contract and preferably one which avails favourable Commonwealth legislation.
• identifying hidden flaws in equipment which spawn or amplify the risk of injury.
• locate advertising and like material which diminishes the objective risk entailed in the activity in question.

R J Douglas S.C.

Footnotes

1. Villa “Annotated Civil Liability Act 2002 (NSW)”, Law Book Company, 2004 at 78
2. Douglas et al “The Annotated Civil Liability Act 2003 (Qld)”, Second Edition, LexisNexis, 2008, at 156
3. Watson v British Boxing Board of Control Ltd [2001] QB 1134 9CA) at [84], [85]
4. Rootes v Shelton (1967) 116 CLR 383
5. Rogers v Interpacific Resorts (Australia) Pty Ltd [2007] QSC 239 at [26]-[29]
6. Bondarenko v Sommers (1968) 69 SR(NSW) 269 (CA)
7. These matters are canvassed in “Fleming’s Law of Torts” (Tenth Edition — 2011) at 338-339
8. (2000) 201 CLR 552
9. (2002) 208 CLR 460
10. (2007) 234 CLR 330
11. [2004] 1 AC 46
12. These are canvassed in Douglas et al “Civil Liability Australia” (LexisNexis) at [18,000] ff.
13. Insight Vacations Pty Ltd v Young [2011] 85 ALJR 629 at [38]
14. Kovacevic v Holland Park Holdings Pty Ltd [2010] QDC 279 at [37] per McGill  DCJ
15. cf Ipp legislation damages provisions in the case of s 74 breach of a duty
16. [2011] QSC 105
17. (2011) 85 ALJR 629
18. except Victoria — see below
19. Civil Liability Act (NSW) s 5F;  Wrongs Act 1958 (Vic) s 53;  Civil Liability Act 2003 (Qld) s 13;  Civil Liability Act 1936 (SA) s 36;  Civil Liability Act 2002 (WA) s 5F;  Civil Liability Act 2002 (Tas) s 15
20. [2010] NSWCA 147
21. Doubleday v Kelly [2005] NSWCA 151 at [28], [29]
22. see Great Lakes Shire Council v Dederer [2006] NSWCA 101 at [153]-[172] where the issue was dealt with in respect of one of the defendants under the NSW Act but went on to the High Court to be dealt with at common law in respect of the other defendant ;  see also Jaber v Rockdale City Council [2008] NSWCA 98 at [27]-[29], [39], [40]
23. [2008] QCA 421
24. Mikronis v Adams (2004) 1 DCLR (NSW) 369
25. Angel v Hawkesbury City Council [2008] NSWCA 130 at [83]
26. NSW Act s 5H;  Qld Act s 15;  SA Act s 38;  WA Act s 5O;  Tas Act s 17;  the Vic Act has no provision to this effect
27. see, for example, Chotiputhsilpa v Waterhouse [2005] NSWCA 295
28. DA Ipp (Chairman), Review of the Law of Negligence Report:  Final Report, (The Ipp Report), 2 October 2002,  http://www.revofneg.treasury.gov.au 
29. Ibid, at para [4.11]
30. Ibid, at paras [4.12]-[4.14]
31. NSW Act ss 5J, 5K and 5L;  Qld Act ss 17, 18 and 19;  WA Act ss 5E, 5G and 5H;  Tas Act ss 18, 19 and 20;  there is no provision in the Vic Act or SA Act to this effect
32. [2006] NSWCA 200
33. [2011] NSWSC 39
34. [2006] NSWCA 32
35. at [25]
36. at [151]
37. Jaber v Rockdale City Council [2008] NSWCA 98;  Laoulach v EI Khoury [2010] NSWSC 1009
38. White v Blackmore [1972] 2 QB 651 in the dissent of Lord Denning;  Ashdown v Samuel Williams & Sons Pty Ltd [1957] 1 QB 409
39. [2009] NSWCA 46
40. see Vreman v Albury City Council [2011] NSWSC 39

On first glance of the title, one may wonder how to review a review. The short answer is to read it. It may sound trite, but it is not so much of a review but an eclectic collection of various writings.

The book incorporates many areas of literature and has chapters which comprise of essays, memoires, reportage, fiction and poetry.

Of note, all the contributions seem to relate in some way or another to the subtitle of the book which is “Wicked Problems, Exquisite Dilemmas”.

The writings deal with some very topical subjects such as Julian Assange, Water Reform in the Murray Darling Basin and, of particular note to Queenslanders, the role that history plays after the floods, which discusses flooding events from 1974 to our most recent devastating floods this year.

WICKED PROBLEMS, EXQUISITE DILEMMAS is really a collection of works that cuts through a multitude of themes within Australian society. Many, if not all the writings are contemporary, cutting edge and very relevant.

For those interested in literature, this is a good and easy read.

At a price of $24.95 the books represents value for money. The Griffith Review is published quarterly and can be ordered online at http://griffithreview.com.

Having regard to the number of pages of applicable statutory material, per capita, Queensland may be one of the most ‘regulated’ in the ‘common law world’. Relevantly, in that context:¹

“No one can doubt the centrality of the task of statutory interpretation … . [F]or the most part, the work of modern lawyers and judges involves pouring over texts – whether constitutions, statutes, regulations, bylaws or rules of court. … Legal words are now the focus of most of our work.”

Statutory Interpretation in Australia is a comprehensive, annotated, synopsis of statutory interpretation principles in all the Australian jurisdictions. This seventh edition is an update to 1 February 2011. The work is a detailed reference as to a multiplicity of statutory interpretation issues. This well-researched, new edition includes recent updates of case law and legislation, commentary on the “principle of equity”, and a discussion of the Human Rights Acts of Victoria and the Australian Capital Territory.

The two authors have collaborated for this publication since the third edition in 1988. Professor Pearce is an Emeritus Professor of Law at the Australian National University and was the former Dean of the Law Faculty there, having previously worked as a Commonwealth and Defence Ombudsman. Associate Professor Geddes is at the University of New England, and contributes material on statutory interpretation to the introductory legal text, Laying Down the Law.²

This text is a remarkably inclusive guide to statutory interpretation and is divided into 12 chapters. These chapters include examination of different approaches to legislative interpretation, extrinsic and intrinsic aids to interpretation, and individual consideration for interpreting current acts, repealed or amending acts and codifying acts respectively. The book concludes by considering legislation operating retrospectively and various drafting conventions and expressions. The preface notes forthcoming amendments to the Acts Interpretation Act 1901 (Cth), which have not been included in this edition. Although the authors state that they will include these updates in the next edition, it is unfortunate that this edition did not wait for the passing of those amendments: see Act No. 46 of 2011, as in force from 30 June 2011.

Given the specific nature of the topic, the book is intended for an audience already familiar with the law. As a result, the text provides a laconic account of the topics, very well-supported with references to both case law and statute. The work includes a detailed contents list, tables of cases and statute, and an index.

In conclusion, this text is a fundamental reference work for both law students and professionals.

 

Footnotes

1. Judicial Officers’ Bulletin, July Issue 2007, Book review, Statutory Interpretation – Principles and Pragmatism for a New Age, Editor: Tom Gotsis, Publisher: Judicial Commission of NSW, Education Monograph 4, Date: 2007, Reviewed by Justice Michael Kirby: http://www.hcourt.gov.au/assets/publications/speeches/former-justices/kirbyj/kirbyj_jul07a.pdf .
2. Cook, Creyke, Geddes & Hamer, Laying Down the Law (2008), 7^th edition.

This publication deals with the current role of the media. Lindsay Tanner argues that genuine public input into political debate is shrinking, and the notion that politicians are engaged in legitimate democratic decision-making that is fundamental to the nation’s future is being bartered away. Under siege from increasing commercial pressures and technological innovations, the media now focuses on entertainment with the result that there is now little tolerance for complex political, social and economic debate as entertainment is overwhelming politics. In turn, politicians and political parties are adapting their behaviour to suit the new rules to such an extent that the contest of ideas is being supplanted by the contest for laughs and trivia, with journalists searching for quirky and amusing news items capable of diverting or titillating its audience. We now have media distortion by ignorance, negligence and indolence, and as the tide of trivia, titillation and distortion keeps rising, the media act as producers, directors, and even scriptwriters. While the outward forms of our democracy remain in place, its quality is being undermined from within as one of its critical components, a free, fearless and informative media, is being turned into a carnival sideshow as media content must now be simple, stark, and either appealing or appalling.

Tanner argues that while the media was central to national politics when he first entered Parliament in 1991, it is now much more important to the modern politician. The creation of appearance is now far more important than is the generation of outcomes, and this produces deception and “the politics of the moment”. Winning today’s micro-argument is all important, and tomorrow can look after itself, thereby breeding a collective mentality of cynicism and manipulation. Policy initiatives are measured by their media impact, not by their effect, and the primary focus is on how politicians handle issues rather than the issues themselves. Our media is trapped in a downward spiral of trivia and sensation. Further, the diminishing seriousness of media coverage of politics has had the effect of causing governments to resort more to paid advertising to get their messages through to the voting public.

According to Tanner, media proprietors, editors, journalists, politicians, bureaucrats, and voters are all contributing to the degrading of democratic politics. The media is a critical component of our democracy because genuine democracy requires a reasonably informed electorate, but without the active participation of the media, that’s impossible. When the serious content of political decision-making fades from our media, democracy is undermined, and while the forms of democracy remain, the substance melts away. Consequently, our democratic process is presently at risk of returning to the patterns of the nineteenth century when very small elites totally dominated public decision-making, and formal wealth, income, and status barriers excluded the mass of the population. New barriers to participation built on ignorance and distraction are now emerging.

Tanner cites examples of some of the modern media’s tactics:

(a) Stories are deliberately distorted by the selective omission of information to make them more appealing;

(b) Politicians are given the opportunity to respond to damaging accusations close to the publication’s deadline, thereby making it difficult for the politician to refuse the allegations and thereby kill the story;

(c) The use of unflattering photographs to make or underline a point or to visually assassinate a person;

(d) Reporting an options paper in a manner that conveys the impression that the Government was taking the action in question rather than reporting it as one of a number of options being floated by the Government;

(e) The use of individual stories where the views of people who are not representative of the community are quoted as being representative; and

(f) The distortation of political coverage via story selection or non-selection.

Tanner acknowledges that while the underlying elements of “spin” have been part of the domestic process since ancient Greece, its significance is growing, and whereas it once reflected occasional embellishments and evasions, it now lies at the heart of our political process. He argues that the two key rules that now govern the practice of Australian politics are to look like you’re doing something and to not offend anyone who matters.

Tanner is pessimistic about the future of Australian politics. He argues that Australia deserves much better than the carefully scripted play-acting that now dominates our nation’s politics and that, not surprisingly, many Australians sense that there is something wrong with our political system. He argues that while there will always be a large number of people who think that our political system is failing, cynicism and despair about our democratic processes is growing. For example, the 2010 federal election campaign was a widely derided campaign that produced a result in which Australian effectively voted for “none of the above”. While compulsory voting masks the decline in engagement, other symptoms suggest that many people, now they have the choice, have “changed the channel”.

With almost 20 years as a member of the House of Representatives and a number of years as a Minister, Lindsay Tanner is well qualified to write about the “dumbing down” of democracy in Australia. While this book does not contain any shock revelations about the workings of the Rudd government or anecdotes from inside the cabinet room or attacks on Tanner’s colleagues, it does provide an illuminating insight into the workings and/or failings of Australia’s media and democracy and alerts us to the need to be very careful in assessing the information contained in our media. On the other hand, while Tanner outlines in depth what he perceives to be wrong with the modern media, he does not offer a great deal by way of solutions to the problem. He simply concludes that while we have no magic wand with which to solve the media sideshow problem, by acting individually and collectively we can somehow start to push back the forces of entertainment colonising our democracy, thereby preventing our democracy turning into a sham.