Vale: Carmel Preece

Carmel Preece, who died on 9 June aged 56, was the type of lawyer who inspired the utmost respect and confidence in anyone who dealt with her.

Carmel grew up in Mount Gambier with her brothers and one sister, who were all very close, and went to Aquinas College while studying law at Adelaide University.

Carmel began her career as a junior lawyer at Aldermans in 1985, and carved out her initial career at what was then the Industrial Court. Fellow junior lawyers in Carmel’s cohort included Mark Keam, Tim O’Callaghan, Anne MacDonald, Mark Calligeros (now Judge Calligeros), Tracey Kerrigan and Tony Phelps.

Carmel went on to have a long and successful career in the legal profession, practicing predominantly in the workers compensation jurisdiction in South Australia.

She enjoyed many years working at Piper Alderman, Duncan Basheer & Hannon, Gun & Davey, and finally at KJK Legal –coming full circle to again work with some of those lawyers she had commenced her career with many years before.

Colleague and friend Mark Keam said that while she often flew under the radar, and was never a great self-publicist, “Carmel was by far and away one of the most conscientious, thorough and reliable lawyers we had the privilege of working with. She gained the respect of her many clients, the judiciary, and other lawyers over the years with her calm, empathetic and focussed demeanour. Many of those people she counted among her friends.”

Carmel enjoyed the collegiate atmosphere of practicing in the worker’s compensation jurisdiction and, when COVID-19 restrictions were enforced earlier this year, missed the opportunity to be able to converse with colleagues, swap war stories and gossip at the SAET.

She was looking forward to being able to once again take a morning stroll along North Terrace to the SAET to begin the day’s battle once the COVID-19

Carmel Preece

restrictions were lifted, but her health took a turn for the worst, and after a three-year battle with cancer, Carmel passed away peacefully at the Mary Potter Hospice.

She had many friends within and outside the profession, and will be profoundly missed. B

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Silence in Court: The case of the coveted Magpie

MICHELLE SLATTER, SENIOR RESEARCH ASSOCIATE, CENTRE FOR HOUSING, URBAN, AND REGIONAL PLANNING

In their recent book Budgerigar 1 , Sarah Harris and Don Baker describe South Australia’s leading role in the trading of Australian native birds during the nineteenth and early twentieth centuries. Amongst local dealers the authors identify John Foglia as “top cocky” 2 . So, it’s not surprising that when he brought one of the most diverting small claims to be heard in the summer of 1913, it concerned a bird. However, this was far from a commercial case.

The drama began on Monday 27 January, 1913, the hottest day of that summer, when the mercury touched 106F (42C). Hot temperatures provoke hot tempers, or so they say.

Five days earlier a magpie belonging to Foglia escaped. With one of his sons, he went out each morning to try and locate it. Early on that hot Monday morning they apparently heard its distinctive call emanating from the premises of their near-neighbour, the fruiterer ‘John’ Sym Choon. Later that day the two Foglias visited Sym Choon and demanded the return of the bird. Sym Choon refused, stating that the magpie at the premises was his. The Foglias persisted. The discussion became heated. Sym Choon allegedly threatened to punch Foglia Snr on the nose. The Foglias left. Legal action ensued.

Through his business, Foglia had built a large network of influential connections. He had arrived in Adelaide from Switzerland via London in 1883, a wireworker. By 1913 he was wellestablished in Rundle Street East. His shop declared itself to be “the cheapest shop in Adelaide for cages”. However, his principal business had long been the sale and export of Australian native birds. His clientele included natural history museums and zoological gardens in South Australia and beyond; international collectors such as Baron Rothschild and a long list of local aviculturists, among them C B Hardy of Fenn and Hardy, solicitors.

Known as CBH, Hardy was a senior member of the legal fraternity. His grandson R G Thomas remembered him as a particularly keen gardener (with) almost an acre of garden at (his house on) Payneham Road. … He was also tremendously keen on aviary birds of all sorts and he had a veritable zoo at Payneham Road, including such rare species as curlews and a koala bear and a turtle! ….He had an almost open account with a bird dealer called Foglia in the East end of Rundle Street’.

Fenn and Hardy specialised in trusts and estates. CBH had a well-known distaste for clients involving themselves in the costly game of litigation. R G Thomas recalled that he “always said with emphasis that his approach to the legal profession was to keep people OUT of the law courts!”

Nevertheless, it seems that Foglia’s determination overwhelmed any reservations CBH may have had about the firm accepting his case or pursuing the action to court. Perhaps it was seen as a rare opportunity for the articled clerk, A S Blackburn, to get some advocacy experience. At this time, the outstanding bravery and exceptional public career of Brigadier Arthur Seaforth Blackburn VC, CMG, CBE, ED, JP all lay in the future. Representing Foglia, his mission was to recapture the client’s bird, armed only with the client’s unwavering assertion of ownership. Thus equipped, the 20-yearold law student and articled clerk arrived at the legal battleground of the Adelaide Local Court.

He found himself facing adversaries who were quite comfortable on that terrain.

Sym Choon had arrived from Guangdong province in about 1890. He established his business hawking fruit and vegetables from a barrow. Then, in 1908, the family moved to live and trade at the Rundle Street East premises, which they first rented and subsequently bought. ‘John’ was well-known among Adelaide’s small Chinese community, respected as a trader and family man. With R H Lathlean’s professional assistance he had become familiar with the courts: in civil actions against his landlord and in criminal cases arising from yobbish attacks on his cart and premises.

Richard Hedley Lathlean, partner in Holland and Lathlean, solicitors, was an experienced advocate. He was known in the courts for his ‘zeal to win’. Indeed, it was said of him that “no barrister has pleaded the cause of his clients more determinedly or earnestly”.

If there were any efforts at pre-trial settlement, they failed.

The hearing, on 26 February, was before Mr Commissioner Russell SM. Commissioner Russell was a remarkable public servant: Commissioner of Taxes, Commissioner of Stamps, Commissioner of Insolvency and a Stipendiary Magistrate. Previously a Master of the Supreme Court and Registrar of Companies, he was clearly a prodigiously