Editor’s Opinion

Jason MacLaurin SC

Editor, Brief | Barrister, Francis Burt Chambers

This edition contains a special Mental Health and Wellbeing segment, in recognition of Mental Health Week (9 – 16 October). It features an engaging, and inspiring foreword, “A Science Fiction Reader’s Guide to Mental Wellbeing” by former High Court Chief Justice the Hon Robert French AC. Brief is all the more grateful for the foreword, as it was actually the result of misinformation (fake news, if you like) on Brief’s part. Other feature articles are Catherine Stokes on how to create safe work environments, and an article on one of [insert preferred noun/pronoun]’s best friends, Winston the Labrador’s heartwarming contribution to helping witnesses, victims and others at the Courts. We have profiles on lawyers with interesting pursuits: including an international underwater hockey player, volunteer firefighter, female footy player drafted by the Dockers, musicians and writers, and in an area dear to the Editor’s heart, a wrestling ring announcer, who hopefully stays in kayfabe1 (Editor’s word of the month, and one not entirely inapplicable to practice of the law). A focus on mental health and wellbeing is always timely. And a focus on such issues generally is particularly timely, given some of the unlovelier outcomes of the COVID pandemic. The law played a central role in the broader issues surrounding the COVID response, which results in angst and occasionally anger: the question of freedoms, rights, duties, individual liberty and privacy and the limits of regulation. While, on the whole, society’s response to COVID has been uplifting, it is not just on social media (though this is a fertile source) that many, on all and every side of the issues, seem prone or pressured into a heightened level of, for want of a better term, unkindness towards others: whether it be acting like Donald Sutherland in the final scene of The Invasion of the Body Snatchers2 or saying things like “if you think that I just hope you and, if you have kids, your kids, all [….]. Apart from the phrase “with all due respect” there is no preamble more certain to lead to awfulness than that one. Hopefully, lawyers can not only cope with their own pressures, but also, to the extent they can, assist in the law’s function to defuse these unfortunate tensions. A major threat and concern, whether it be in relation to the practice of the law, or the broader reaction to the COVID pandemic, is a state of joylessness setting in. The concept of “joy” means different things to different people, but all recognise its importance, and when it is (and isn’t) present. George Bernard Shaw wrote of joy as “the being used for a purpose recognized by yourself as a mighty one; the being thoroughly worn out before you are thrown on the scrap heap; the being a force of Nature instead of a feverish selfish little clod of ailments and grievances complaining that the world will not devote itself to making you happy.” Mention of being thrown on the scrap heap after being thoroughly worn out is hardly on the face of it uplifting (and possibly a source of night terrors) for lawyers. Shaw seems to have meant it as the fulfilment of his wish to feel completely “used up” by the end, having left nothing behind or undone. The latter/ italicised phrase seems to sum up a considerable proportion of social media users (and, yes, even you bots too) and, to the more curmudgeonly and older folk, a good description of millennials or whatever generation is coming through. Also, get off my lawn (having turned 50 I’ve always wanted to say that). The Shaw quote is from his play Man and Superman, which, aside from its sexist title, is interesting as it is for the most part a comedy of manners, but has a lengthy third act involving Don Juan’s philosophical debate in Hell with amongst others, Satan, and which is not always performed and is often omitted (as it is far heavier going than the rest of the play).3 This concept might be a source of joy for some, as who hasn’t been at a live performance and wanted to make an audible call at the line of scrimmage along the lines of “I’m not really in a downer mood – can we just skip to the good bits” or “I have to get home for the replay.”4 The Editor has the luxury of a straightforward definition of joy: being a fervent supporter and member of a football club for 30 years that hadn’t won a premiership for 57, and watching that team win the GF at Optus with a Mrs Mac pie in hand. An internet search for “joy” and “law” brings up reference to the management principle of “Joy’s Law” attributed to Sun Microsystems co-founder Bill Joy. Joy’s Law is that “no matter who you are, most of the smartest people work for someone else”. The impetus for the law was, like many inventive developments, the result of being irked with Bill Gates (Joy apparently wanted to make a point about Gates’ claim that Microsoft was an IQ monopolist). Joy’s Law is not as harsh as it sounds, and is not a proper basis for principals to make nasty comments about their employees. It also bears no relation to that other immutable law that, when things are going badly, clients always complain that the smartest lawyers are all on the other side. Underlying Joy’s Law is that, as Friedrich Hayek observed5, knowledge never exists in a concentrated/integrated form but is dispersed bits of incomplete and contradictory knowledge possessed by all individuals, and so it is better to create an ecology that gets all the world’s smartest people toiling in your garden for your goals as relying solely on one’s own employees will never result in the customers’ needs being solved.6 Joy’s Law may be useful for principals in structuring practices, or for lawyers in avoiding trenchant criticism or asking for a pay rise. Or it may not. Such are the joys of life in finding out.

This edition has a thought-provoking “Letter to the Editor” from Steven Penglis SC, who appeared before the High Court in the recently decided Charisteas v Charisteas, about the need for an independent body to deal with complaints against the judiciary. It should be noted that the Society endorses a proposal of a formal system for investigating and dealing with complaints against judicial officers, the briefing paper being available here. This edition also has, among other items, Charmaine Tsang on the “Equitable Briefing Policy”, “Taxation Part IVC Objection Proceedings” by Matthew Crowley; “The Sword of Damocles” by the Law Society’s very own policy lawyer and history aficionado Thomas Moorhead; and “Shaping Legal Minds” by Chief Justice of the High Court the Hon Susan Kiefel. Happily, the YLC is back with Case Nopes; Aunt Prudence Juris (Agony Aunt); Going Straight to Bar and a wrap up of the Golden Gavel event.

End notes

1 Otherwise the Editor will feel foolish about betting so heavily on the Alexa Bliss v Charlotte Flair match at the

“Extreme Rules” WWE PPV. 2 Though, thankfully, nobody can quite look like 1970’s

Donald Sutherland at the end of that film. 3 Berst, Charles A. (1973). Bernard Shaw and the Art of

Drama. Chicago: University of Illinois Press. pp. 126. ISBN 0-252-00258-X. 4 Getting straight to Wagner’s “The Ride of the Valkyries” in

Die Valkyrie would also seem to be a good idea, saving 2 and a half hours, except one would then be tempted to go home immediately and watch Apocalypse Now. 5 Hayek, Friedrich A. The use of knowledge in society (XXXV, No. 4 ed.). American Economic Review. pp. 519–30. Retrieved 24 October 2014. 6 Karlgaard, Rich (2007-11-09). “How Fast Can You Learn”.

Forbes. Retrieved 23 October 2014.

LETTER TO THE EDITOR

Call for Independent Judicial Complaints Commission.

As many of your readers will now be aware, on 6 October 2021 the High Court of Australia set aside orders made after trial by a (former) Judge of the Family Court of Australia: Charisteas v Charisteas & Ors [2021] HCA 29. The orders were set aside as a result of various communications “between the trial judge and the wife’s barrister otherwise than in the presence of or with the previous knowledge and consent of the other parties to the litigation” during the period between the commencement of the trial and judgment. The High Court noted that “given the timing and frequency of the communications between the trial judge and the wife’s barrister, it cannot be imagined that the other parties to the litigation would have given informed consent to the communications even if consent had been sought, and it was not. The communications should not have taken place. There were no exceptional circumstances.” The High Court observed that “[t]he lack of disclosure in this case is particularly troubling. It is difficult to comprehend how the trial judge could have failed to appreciate the need to disclose the communications”, and that this was particularly so given that at one point he “was dealing with (an) application to recuse himself on other grounds”. The High Court expressly acknowledged and “accepted that many judges and lawyers, barristers in particular, may have continuing professional and personal connections”. The Court made clear, however, that “the means by which their contact may be resumed is by a judge making orders and publishing reasons, thereby bringing the litigation to an end. It is obviously in everyone’s interests, the litigants in particular, that this is done in a timely way”. The end result is that a long and expensive trial in 2016 has effectively come to nought as the matter has been remitted to the Family Court for rehearing. The case is a stark illustration of the importance of there being no communications between counsel and a trial judge once the trial has started until judgment has been delivered (at least not without the informed consent of the other parties). Whilst this is clearly an exceptional case, it highlights the fact that whilst consumers of the legal system are able to make complaints to independent bodies about the conduct of legal practitioners, in Western Australia, and despite numerous and repeated calls over a long period, the government has not established an independent commission to which complaints can be made about judges. This unfortunate case presents yet another reason why such a commission should be established. I respectfully suggest it is high time the government did so. Liability limited by a scheme approved under Professional Standards Legislation.

Steven Penglis SC - Barrister 7 October 2021