fox200855 notes

1979, May 21 (nominal month & day): South Australian Supreme Court ambush, and an adjournment

Rob Wyly's office with new front and verandah being built in Stuart Road, Dulwich, Adelaide in 1980

In about January, 1979, I had set my first law firm up in partnership with Mr. Henry Vail LL.B., called Truman Wyly, Vail & Co, Barristers & Solicitors, Henry Vail a good friend from some four years previous, met during each our first year at law school at Adelaide University. (More, establishment of firm …)

Our initial clients were insurance companies, instructions concerning recovery of damages when the driver of motor vehicle negligently damaged a vehicle insured by such an insurance company, called motor vehicle accident, property damage: mva-pd – bread and butter work.

We picked up QBE Insurance (“Qbe”), Greater Pacific Insurance (“G-pac”), AMP Insurance, Mercantile Mutual (“Mercy moo”), SGIC, Norwich Winterthur, Zurich Insurance, CIC (founded during World War 2 by my grand-father, Edward Wyly’s father, also where Edward Wyly worked in the 1940′s) and a few other insurance companies, many picked-up in the first year of operations, in 1979; both Henry Vail and I having acted for all of those – other than Zurich (whose state manager was a fellow Apexian in the Apex Club of Burnside, Mr Philip Kleinig) – while in the pervious few years, each working as loss adjusters for Truman Wyly, Chartered Loss Adjusters, and thus knowing most of their clams managers and claims staff personally – the (nick-names) attributable to jargon in that firm.

Top: Rob Wyly's office with new front and verandah being built in Stuart Road, Dulwich, Adelaide in 1980 - 2nd from top: Edward Wyly's Rolls, 1979 in Stuart Road, Dulwich, Adelaide, his weekend vehicle; his work vehicles variously a red Jaguar XJ6 and a yellow Rover - the staff, three male loss adjusters, two with law degrees, three Ford Escorts among them - Last two images: Rob Wyly's vehicle circa 1980, red Volvo 264GLE, later replaced with a green Fiat X19, and then a red Renault Fuego, both taken at Elmglade Road, Springfield, Ted & Jean Wyly's residence (after Rob Wyly moved out in February, 1977), one with Rob Wyly and pet whippet-labrador cross called Sandy.

Soon enough, other types of instructions followed from those insurance companies, in the law of tort, negligence claims – where an insurance company indemnified an insured under a pubic liability policy, or public liability extension to a householder’s policy, for any damages caused by such an insured’s negligence; and, as another type of tort matter, or recovery for damage to an insured’s property, where an insurer had covered that loss, against any negligent party or parties causing that loss, pursuant to the insurance companies subrogation right, that is, the insurance company can stand in the place of the insured and take action for recovery in the name of the insured. Those tort instructions usually involved greater sums of money than mva-pd, and greater complexities, and often in higher level Courts, so the instruction generated greater fee income, and often lasted longer.

In addition, private clients from the Dulwich area, and others person, started to develop.

Experience by 1979:

Having developed contacts with insurance companies while each a loss adjuster, meant Henry Vail and I were confident to start our own law firm in January 1979, each straight away after completing articles of law – then an unheard of event, other than Alex Marshal, who also set-up his own law firm – Alex Marshall & Co. – in Port Adelaide (Marshall & Co) straight after articles, Alex a friend of Henry Vail.

Adelaide Establishment: I am not sure about Alex or Henry, but I was told a few times it was wrong to not work as an employed solicitor after articles – the issue, one supposes, experience, but there is more to it than that – it is an Adelaide establishment rule more like it. One is also told around then who runs Adelaide in practical terms – the Adelaide Establishment (with a capital E); I was most certainly told that before and in 1979.

However, I had been working gaining experience as a loss adjuster literally since I was 5 years old, in 1960, when I would accompany Edward Wyly on attendance at the site of losses, to start with, mainly large industry fires happening at night or on weekends or during school-holidays, and, if large fires, while the blaze was still going, as it was critical to, among other things, obtain opinions as to the cause of loss on the site, and to also photograph stock, so there was little room for dispute later what stock as there. Wheat silo fires were more common, especially when harvesting was undertaken in damp conditions – damp wheat and other material can in a spontaneous manner combust.

From 1960 to about 1972 inclusive, I graduated over the years to holding a camera and a measuring tape to using them, to counting stock, to making maps of accident scenes, to sitting in on interviews. Along that path, I often spoke to cops the scene, sometimes firemen – and took an interest in forensics, very advanced then in the 1960′s in Sydney (not) – like NSW detectives using sticky tape to take prints, yes, common old sticky take one buys at a newsagent. I met interesting characters like the Kings Cross armed rob squad – despite their name and the appearance of some (carrying shotties – shotguns), they defend banks, not rob them – though usually Hornsby and Ride CIB were encountered, as the assessing firm was located in the North shore – Wahroonga, Sydney (wikipedia). I understood what a drink was, and brown paper bags has multiple uses, and the divi van could be used for more than divisional police work (not meaning sex related, is, the divi-up).

From 1973, during law school, I acted formerly as a loss assessor part-time for four years (apart from, in Adelaide, work while at secondary school and university, as I was required to earn my own money, plus pocket-money, namely, with some work over-lapping, i.e two jobs at the same time: as part-time work over three years as a painter (Bisslands and George Rinkle), over two years a part-time petrol station attendant and tyre fitter and junior mechanic (Eden Hills Golden Fleece service station owned by Mike Ellis), a part-time type fitter (at Blackwood Tyre Service owned by Mike Ellis after he sold the service station), and part-time delivering milk on a milk-round (ran by another tyre fitter as his night job) and then in 1977 full-time as an insurance loss adjuster.

I had been reading LLoyds of London Insurance Law reports and tort insurance related books since the 1960s, in addition to having been taught practical insurance law since I could first read.

So, I thereby and thus had experience in insurance, practical work – which often involved taking statements and drawing maps, taking photographs, gathering documentary evidence, setting traps for suspected bogus claimants (sometimes with police co-operation when the police were involved at an early stage), causing rewards for valuable information to be offered by insurance companies to catch crooked claimants or assist recovery, and developing a complete file later for, or in co-operation with law firms (formally on their instructions often to gain LPP, but the lawyers doing little during the investigation stage other than giving ‘formal LPP cover’ as it was called, to make the insurance reports this immune from production to the other side acting for insurance companies) – and even attending solicitor firms, accounting firms and Chambers with Edward Wyly, sometimes, when allowed to listen to conferences with clients (subrogated insurance companies) and / or instructing assessors (agents for subrogated insurance companies), such as Wentworth Chambers.

In Adelaide, while on such work experience and as a formal assessor, before 1979, I had met some of the partners of some leading Adelaide insurance law firms who acted for insurance companies Truman Wyly & Co, Chartered Loss Adjusters worked for, such as: Ross McCarthy & Nosworthy, Tindal Gask and Wilkinson Townsend; and had also met the renown Ken McCarthy QC (I thought a QC version of the solicitor / barrister Wilkie) – therefore, I had access to senior peer group support by 1979, plus access to some of their legal precedents and kindly assistance over the telephone, let alone the benefit of one year in articles in 1978 for Mr Anthony Newman at Hunter, Boucaut & Ashton, Tony whose work was then mainly for insurance companies (some on instructions from Edward Wyly – Tony’s father Ted’s best man at his wedding during World War 2), meaning a lot of crash and bang work, i.e. motor vehicle accidents, property damages recoveries.

Therefore, I did and would totally reject any suggestion I was not experienced enough by 1979 to run motor vehicle accident recoveries, or undertake any tort type work – indeed, I understood the practical sharp end coal face side of insurance work, at the accident or loss scenes, better than any lawyer without that experience, having by the end of 1978, apart from experience for a year as a law articled clerk, spent over 2,000 hours undertaking insurance work on work experience, plus about 3,000 hours part-time of full-time as a loss adjuster – some 5,000 hours experience over some 18 years – apart from the other types of part-time work, where one also learns about how life works from various view-points.

Henry Vail had spent one year as a full-time loss adjuster at Truman Wyly & Co, Chartered Loss Adjusters before he started work as a law firm partner with me in 1979. Henry Vail also had the benefit of one year’s work as an articles clerk, and had his own peer group support – otherwise, prior to that Henry Vail had his own life experiences, he also a keep motor vehicle enthusiast (which came in handy later in the irons Kaniva – Nhill mva Coroner’s Matter in the early 1980s).

Henry Vail is a conservative sort of fellow, by that I mean not a cavileer adventurer in terms of work, and he was quite sure we had the experience necessary not to undertake general work as general practitioner type lawyer as, but as “specialists” in insurance work, and from there to expand the areas of work as experience allowed – recalling one can always brief a barrister in most matters.

Indeed, Henry Vail’s one year experience as a loss adjuster gave him additional knowledge in terms of coal face work that lawyers without such opportunities never receive. It is vastly useful to know how the evidence is collected and how an accident scene looks, to gain practical experience, and thus to know what to look for when a statement from the scene is well prepared or sloppy, and when a dependent might be telling a lie or unsure of any of the information so deposed.

Indeed, at accident scenes, often a statement would be written out in handwriting – no portable computers then – and signed by a witness, then to be typed up that evening and put as a typed-out statement to be sworn the next day by the dependent before a JP as an affidavit, sworn statement and even statutory declaration, if the data was that critical, so to lock the witness in.

Such coal face experience also enables one to gain some idea how police work, and gain experience dealing with, even instructing, private investigators, which are also quite commonly instructed by loss adjusters and lawyers alike to catch out dodgy claimants, to hand them over to the police, or to gain evidence for damages recovery work, etc.

Is I mentioned, in 1979 Alex Marshall also set up his own law firm. Alex was a teetotaler, and so had as his personal number plate, from memory, DUI-08 (or DUI-008), as sort of advertising, and perhaps a playful dig at the police – .08 the then legal limit.

I thought that was a great idea, so I acquired personal number plates UCA-222 (Uniform Companies Act- section 222) for the Volvo 245GL my secretary, then wife, and sometimes I, drove – she the one in the stuart Road office to be buzzed by an IBM typewriter, that is, she suffered an electrical shock while typing one day.

UCA-222 was a section at law school mostly condemned by law lecturers, it applied a quasi-crimina liability, by way of fine, and via listings and hearings in criminal Courts, for company directors found guilty of begin careless – that is, a careless person can be found a criminal of sorts.

It was once thought one needed an intent to do crime to be a criminal – but, mainly lawyers, who do not ever, or rarely, see themselves as defendants in criminal or quasi-criminal matters, thus rarely see things in that perspective, have seen fit to guide the law to gradually developed criminal and quasi-criminals offences for persons who never ever formed an intent to break the law – in my view, which is patently ridiculous, frankly, it defies logic – carelessness being equated to crime.

The law is divided into generally civil law and criminal law. It would be better, I believe, if person ought to be responsible in some events if careless, then such matters should not be in any way described as criminal, save manslaughter and reckless endangerment type matters (there the mind-set to be reckless the crime) – such matters should be dealt with under a section of the law called social standards law in Civil Courts, so not to wrongly taint persons who are otherwise honest, that is, such an accused, such a defendant, did not form an intent to break the law – in such careless type matters, by definition, intent is never alleged by the Crown, and the penalty called not a criminal fine but a civil penalty.

To deal with such persons in criminal courts deprecates the seriousness of crimes requiring intent be proven, let alone besmirching persons whose reputation does not deserve to be labelled as criminal. It is difficult enough being honest, and for honest people to compete with intentional criminals, especially white-collar criminals, so why add to the burden a situation where an honest, yet careless person, can also be thought a crim.

Perhaps more lawyers need to be charged with crimes and careless type quasi-crimes for they to gain the experience needed to subjectively understand the issue, especially regarding over-charging where the over-charging constitutes a fraud, or a criminal misrepresentation, or other crime; and even directors of law firms face up to quasi-criminal matters in their capacity as company directors for carelessly over-charging – that is, lawyers are treated like the rest of the business community, by police and prosecutors and even their clients. That would however, I suggest, require a change in mind-set at various Law Societies, and for clients to not be fobbed off by police when reporting a lawyer in the first instance to the police (not a Law Society) for fraud or the like, that is, fobbed of by police on some pretext or other to a Law Society. The forgoing argument is one I have run from about 1980, and is, you might have guesses, not popular with lawyers – just as unpopular as when I accepted instructions and sued lawyers from some law firm clients, numerous times over a decade and a half. You would think a person would learn, would you not?

For those who watch (too much) ‘glam’ or ‘froth & bubble’ or ‘Hollywood style’ television about cops, Australian television like the one this link goes to, and Phoenix / Janus, are both, though there are others, more realistic television about Australian police, this clip about the NSW scene and very accurate by all accounts, re divi vans, etc (though, I have never watched much television, especially fiction, so there are probably other which are closer to realism, and overseas ones: perhaps the controlled chaos in the USA series about the Hill Street police station, also which infers some lawyers work closer to the crime scene, as it should be, prosecutions especially, let alone public defenders, (etc); and such as the once down-to-earth English series called ‘The Bill‘ about the Sunhill police station and, in comparison to the USA show, the more ‘formal’, less lateral, more straight-line logic of some police commanders and traditions, which includes hardly any lawyer participation at the coal face (which appreciably increases the possibility of inadmissible evidence, apart from other disadvantages, perhaps lawyers in the English system more set in a class structure expectation and scenario, yet in loss adjusting, loss adjusters often hold university qualifications, including law degrees, and are involved in investigations from the start, because they are the investigators in what is a private non-government system, thus arguably more dynamic given the bottom line profit and performance for cost issues, i.e more, or less, bean counters and efficiency audits indicating best practice) – before some idiots over a decade ago were allowed to get hold of the production policy and ethic of ‘The Bill’, which was based on realism once, and reduce it absurdly, stupidly, in my view, to a second-rate soapy) – index Blue Murder

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South Australian Supreme Court ambush, and an adjournment

In one matter, not a matter where I sued a lawyer, the state of competitiveness in Adelaide legal circles can be appreciated.

The following is written from memory, so E & OE and any incorrect facts will be amended if that proves so.

In Australia, Sydney, Wahroonga: @ 4.00PM Sydney time: It all started when … first loaded to site 2012-02-07-0017 (Melbourne time) I mentioned Finlaysons, the Adelaide lawyers I had instructed generally, and, in a South Australian Supreme Court matter in about 1986, where Mr. John Tucker of Finlaysons was instructed, based on evidence professionally gathered by private investigator Frank Church JP on Investigators Australia, to do with Minelab (plaintiff) and Garrett‘s metal, coin, gold, archaeological (and explosives and land mine) detectors sold by the defendant in Adelaide, where Minelab successfully sought an injunction to restrain in South Australian that Garrett agent’, including their sales person(s), saying or holding-out or representing the (then) Garrett’s metal detector had a greater in ground depth range than the Minelab machine (in ground is where gold and land mines and other objects to be detected usually are when requiring detection, that is, in-ground testing – in air tests are always not a reliable guide, but a rough guide only, though are easy to do and can look, can be misleadingly impressive, unless the machine is designed for in-air use, such as security devices at airports, etc, and at the NCA in Adelaide cira. March 1994), because that representation by the Garrett’s agent was just not true, and gave the Garrett’s agent and Garretts manufacturer (USA) an unfair advantage if not stopped, that allegation re in-ground depth to detect gold, coins, metal items, and the metallic parts of land mines (using parts from Soviet butter-fly mines, particularly the ferrous detonation pin) based on:

(i) independent third-party laboratory testing by the University of Adelaide electronics department (which was not part of the physics faculty, the testing party Professor Bogner), independently of

(ii) dozens of Minelab in-house laboratory testings arranged by me (as a founder and the first Managing Director of Minelab), and

(iii) Minelab in-field testings arranged by me:

(iii a) near Lobethal, Adelaide Hills), and

(iii b) at Wedderburn in Victoria, that is in the gold fields soil which is typically an ironstone soil profile, and

(iv) in-the-field in-ground testing, by professional gold prospectors in and near Wedderburn in Victoria, i.e. gold field in-soil conditions, and

(v) in-the-field in-ground testing, including at an Australian Army engineering base detecting the same type and brand of land mines which were used in the Falkland War against the British Army, which caused too many fatalities and, otherwise, caused too many and too extensive casualties, the Minelab machine out-reaching in-depth the (competitors) units used by the Australian Army and the (competitors) units used by the British Army (that Minelab proto-type military version, a GS15000 blueprinted, developed by the first full year of Minelab’s operations in Adelaide at the Cherry Gardens house of Bruce Candy as a paid consultant, and then after completion, the Minelab factory at Stepney in Adelaide; or, the second year of Minelab’s operation, if including the pre-incorporation foundation months, and pre-production months work, in the year it took to conceive of the idea and then set-up and conduct the research and development re Adelaide University Physics department (Dr. Don McCoy Ph.D., and Mr. Bruce Halcro Candy M.Sc., a physics Ph.D. candidate part-way through his Ph.D. work), commissioned in 1985 by myself and Craig Hughes and Mike Souvertjis, as the three initial founders of Minelab Electronic Industries Limited), thus the “Mine” in “Minelab” meaning an underground mine, and mine as in land mine, and while I was the largest shareholder (with Hughes and Souvertjis the majority in that publicly listed corporation) mine – a triple word play – triple points then?

which reminded me, when writing that post, of another event in relation to Finlaysons, which prompted me to write a post about the origin of Truman Wyly Vail & Co, Barristers & Solicitors, and an ambush of another kind, involving Finlaysons a few years before I selected Finlaysons as Minelab’s corporate lawyers, as follows.

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Supreme Court of South Australia

In about May, 1979, but possibly up to a year later, the date not important for the moment, … to be continued

Written 2012-02-08-2331 / 2012-02-09-1706 (mainly, re Vail & Wyly past experience, & utube clip)

… I was acting in a matter which involved proceedings in the South Australian Supreme Court.

Early on in that law firm, Truman Wyly Vail & Co., especially as matters became other than crash and bang motor vehicle accident property damage recovery matters, I always looked forward to receiving the letter of denial one almost always receives from a defending law firm in almost all cases, after I sent a first letter of demand off to the appropriate proposed defendant.

The reason for that was, not only to see what other firms letterheads looked like (our letterhead was soon on high quality heavy paper, with dark blue print, and using verco raised print, which I believe was a first in SA for any law firm, that style soon, even within five years, copied by a few other law firms willing to be more adventurous, a departure from the standard type-font, standard type-size, in standard “flat” dull black ink all set on factory ordinary issue white paper; and, may I add, which enabled me later in 1982 to spot the raised printing structure which was used on part of the ‘logo’ to a USSR ID document [the hammer and sickle part in what looked like real and heavy-set raised solid gold leaf, that set on a verco type raised deep dark rich red coloured base, which was circular in shape (or it was the logo in red on gold leaf, each as described), all set in the middle of the front cover made from immaculate high quality black leather, in mint condition, with not even the trace of a scratch or wear, from memory which is a long time ago - not the every day ID document the average Soviet citizen possesses, obviously - the document size and style of a regular passport, in the 'otel in East Berlin at the reception counter in 1982, and thus assist confirming the ID of its holder] but to see if my opponent was a law firm partner (in those days the partners names were printed on the letterhead, from the most senior downwards, some seniors at the top then also QCs) , and, if a partner, how high up the letterhead was my opponent lawyer.

I could gauge the progress of our firm (Truman Wyly, Vail) partly by following how long it took to draw partner levels from opposing or defending firms, and the rank of that parter in that letterhead list.

It was a good day when opening the morning mail and finding an opposing side’s first reply letter, almost always, in polite legal terms, telling me and my client to get lost, was signed by someone in the top 10 of that partner’s list, and better if in the top 5 of an opposing firm, if it was a large or medium-sized Adelaide law firm. There were numerous good days by that measure – better when out side prevailed over theirs, the objective.

In the said Supreme Court matter, the opposing firm was Finlaysons (from memory, as all this is) – one of Adelaide’s largest law firms, then and now, and also a firm which, it was often said, in those days at least, in sometimes whispered almost reverent tones, only admits former Saints boys as partners – perhaps, some speculated, maybe even only Saints Old Bays as employed solicitors as well.

That observation is important, for I know some old boys of various private Adelaide schools do actually monitor where the old boys of given schools go, for example, informally, the Black Watch club in Adelaide a few years ago undertook an informal survey to count how many old Scotch Boys were in important places, not only just in law firms, compared to others from other private schools, and compared to the decades long, maybe century plus long Adelaide bench-mark concerning Saints school Old Boys; and also compare Catholic -v- non-Catholic statistics (and, I have to say, Jewish statistics) - so the issue was and I am sure still is taken quite seriously, quite seriously, by some in Adelaide – some in the Adelaide establishment and some in the (more narrowly defined) Adelaide Establishment.

That survey indicated Scotch Old boys were hunting the Saints Old boys down in terms of most influential in Adelaide by that measure – which means a change in the guard, given such a measure speaks to the very influential power base in Adelaide (not a power base, but the power base), especially as Adelaide is very remote from the rest of Australia and Australia is very remote from the rest of the world, more-so in decades past – every city has some form of qualification to an elite influential level, in Adelaide it is partly by Old School name, partly if new (nouveau riche) or old family money (also a function of affording a private school), partly what clubs one belongs too (and there are numerous very not-publicised small clubs as well), partly if Freemason or not (in the World War 2 years, and in-between wars, that is after World War 1, is has been commented by persons who know, many people were Freemasons, and “almost everyone” in the ell above middle class set, if not Catholic or Jewish or of other criteria not then accepted by Freemasons), and a few other selectors in Adelaide terms.

Don’t scoff, in some places, some clubs, some dinner parties, especially among the older suits of Adelaide, that is a ‘red hot’ topic, to use a phrase borrowed from Edward Wyly, and if you were to in any way seriously scoff at that topic, especially if scoffing a second time after being frowned at, or even show any disdain, let alone laugh, you would actually be in some difficulties, and, most often, you would not be told that – your name would be noted, others would be told of your attitude (problem) and then some persons would informally watch out for you as a potential trouble maker – indeed, to see if you were displaying other anti-establishment tendencies in other aspects of your life. Why?

Because it is The Establishment mentality, where the status quo is the order of the day, week, month, year and decade – for as long as the system works the status quo is sought, and The Establishment enables the host of advantages to its members it so genuinely offers – some advantages quite illegal always, some advantages legal decades ago and not now – such as monopolistic collisions, illegal by the more modern anti-monopoly laws.

You will not find The Establishment or the Adelaide Establishment in any phone book in Adelaide. It is not a registered anything. It has no club rooms or secretariat. It’s members are not listed in any written records or data-base. It has no written constitution, it has no president or office-bearers commonly known or at all – save in a way presidents and office-bearers of formal upper class clubs. It is invisible, it is secret – it is acceptance by way of a complex set of mechanism, almost in the same way evolution (as in Darwinism) is imperceptible, yet it is there and understandable, perhaps a poor analogy. Yet most people well know some people who they think are in that group, though really some are not (due to given factors) – but many people in that group you would not be able to guess. Inside that group, by custom and practice, it is more generally accepted who is what.

Unfortunately, all that is quite true, indeed, I have understated the importance of some forms of measurement used in Adelaide.

Woe betide you, so the saying goes, if you (dare) underestimate the power of the Adelaide Establishment and even the Adelaide establishment – they are a very serious lot of wealthy and influential persons, many elite.

That last comment is all the more serious, and less scoffable, if one reads this link – go on, try reading it noting no-one has ever been arrested or even publicly identified – wikipedia & da family.

The Black Watch is not a Saints related club, and I do suggest the Black Watch is a front for the Family – neither comment intended by me to be linked with Finlaysons, i.e. not a back-door barb; indeed, I knew a number of Finlaysons partners, and also retained Finlaysons as Minelab’s corporate lawyers from 1985 for a number of years, and, further, in 1987, Finlaysons further accepted the designation of corporate lawyers for Nova Medical Limited’s draft prospectus for a main board ASX float scheduled for November, 1987 – in both cases with Coopers & Lybrand (google) as the corporate accountants and auditors.

After that set-up, which was more a side-track off Saints school, in the said Supreme Court matter, Nigel Winter, also called Charlie Winter by his friends, was the lawyer at Finlaysons opposing me.

He had about as many years experience as a lawyer as I had – such that one could say our experience levels were similar.

In a telephone conversation with Mr.Winter, about a soon forthcoming interlocutory hearing in that Supreme Court matter before a Justice of that Court, (not a Master or Deputy-Master), I thought I enquired of Mr. Winter if a ‘barrister’ from or for that firm would appear with Mr. Winter, or if he would be appearing himself – as the hearing was for argument about not a seriously important issue. I understood Mr. Winter said he was appearing – and I took it not as junior or instructing solicitor, but appearing as the barrister – alone. I said that I would not be briefing the matter – meaning I would appear myself, and that it would be an interesting contest between us. it was important for me to know who was appearing, obviously, I did not want to face in that not very important to the main matter argument a senior barrister – so I thought I asked the question clearly and heard the answer clearly. Mr. Winter may have heard my question differently – and said he was appearing, but thinking with a senior barrister, making the answer he gave me technically true in literal terms.

As the saga turned out, as the modern generation seem to say – whatever – but I learnt a lesson in terms of asking precise questions and listening to the answer for technicalities and silent caveats so to speak – caveat emptor absent duty, even with duty is one is more cynical. The saga went like this.

One morning soon then-after I spoke with Mr. Winter as aforesaid, in that matter, I was sitting at the bar table in an empty Court-room in the Supreme Court in Adelaide, with a few books in front of me, waiting for the opponents to show up, and then His Honour to arrive to sit on the Bench, the matter be announced and the lawyers present announcing their respective appearance and save disputes about appearance, the matter begins.

I had prepared my argument and was looking forward to the hearing.

Turning around, I noticed Mr. Winter arrive, with another fellow – both robed, as usually required if one intends to sit at the bar table.

They were totin a lot of books – maybe the other fellow, older than Mr. Winter by some appreciable degree, was not Finlayson’s porter, but a senior barrister, I then thought.

They approached the bar table and sat down to my left, and neatly placed their books in a line on the bar table, lots more books than I had assembled on my side, and got out a file and many papers and prepared for an argument – both looking straight ahead waiting for His Honour to arrive. I could do little other than smile – throwing some books in their direction would invite an assault or contempt charge.

As His Honour in his Chambers one supposes, would have been informed both sides were ready, and probably the names of those at the bar table, His Honour entered the Court room, proceeded to the bench, and sat down at the bench and the matter was called on – so far normal procedure.

I forget the exact sequence of events then, however I announced I appeared for the plaintiff – there was no instructing solicitor as I was both – as an admitted barrister and solicitor of that Court, as was my right.

The other fellow I spoke about got to his feet – not Mr. Winter, and announced himself – not only a barrister, of the QC variety.

After a few minutes, His Honour adjourned the matter.

It was obvious there was no way I could be expected to argue the matter against a QC, though technically I could have been asked to proceed – His Honour pointing that out, i.e. that I could not be expected to argue the matter in that situation, and though His Honour did not say so in direct words, so I recall, it would have worked a manifest injustice to my client. It is a trite observation, I suggest.

Assuming Mr. Winter merely knew I was to attend myself as barrister, one might have thought time could be saved and I be informed a senior barrister, let alone a silk (another name for a QC, they are allowed to wear silk robes) would appear – so I could have arranged a suitable barrister to match, and the matter would not have been adjourned. However, an adjournment hurts nobody usually – just a waste of time and costs.

In hindsight, I perhaps should have asked for costs, and even costs against Finlaysons as a firm – these days I would have, but I would also have made a detailed file note immediately after the conversation to be sure of my ground, and I would have better ensured I asked the question in exactly the right way and listened more carefully when the answer was given, to ensure no technicality was used, which is part of the adversarial process (catching a person on a technicality, if that tactic is useful at a given time, though personally I think using technicalities it is more a time waster and done more on the basis of not gaining time to re-group, but used for one-up-man-ship more than for practical purpose, like an ape beating its chest, or bashing a tree with a tree branch, to say it has won some point – not that I equate the QC or Mr. Winter with an ape mind you, the comment was directed generally).

I then also thought it was a pity – the experience for Mr. Winter and I to both argue the point would have been valuable, and His Honour would have realised two junior members were at the bar, and I am sure, at least hoped, made allowance, even, perhaps, in a way, ‘assisting’ as if alike a moot – that is, not assisting one side only, but assisting to encourage both junior members of the profession to attempt to increase their court room experience, rapidly even.

For example, a Justice or Judge can ask:

“I was wondering about such and such, what do you say about that?”

or
“At page 12 of the pleadings, para 33, such and such is pleaded by way of defence, is that not material to this and that?”

- which sometimes is a hint a necessary, or even an optional part of an argument was omitted or not fully developed, that is, a subtle assisting hint; or, can be a subtle put-down.

We – Mr. Winter and I – will never know what attitude His Honour might have taken if the said senior barrister did not turn up.

After I left the Honourable Court, I decided two things.

First, I decided to increase the budget for my law firm library – as the firm was located in the suburbs (Dulwich), the local Supreme Court and Law Society and Adelaide university law libraries were not convenient for research. So, a quick $10,000 was invested in additional library books – and the monthly budget increased, much to the benefit of CCH and The Bookshop (an Adelaide leading supplier of law books, then).

Second, if such book toting barristers were to be encountered, my firm needed a hired gun.

Arriving back at my firm, I telephoned some senior barristers (but not ones who might be in a position to represent my firm, so I gained an objective answer, such as Ken McCarthy QC, Tindal Gask, etc) and also asked a few senior solicitors – not any lawyers living in Elmglade Road though.

After a while, I was told about a fellow who had a new enough Chambers at the Pilgrim Centre, near or part of the Pilgrim Church complex. I was informed he was a devout religious fellow (and I thought then, it ought to follow, on that basis alone, will always tell the truth, even not lie by omission, for fear of adverse judgement on becoming a deceased anatomical human), very formal (I was warned he wears a suit to his office even on Sundays), and a name to be watched, an upcoming barrister – the religious part impressed me most. His name I was told was Lunn, Robert Lunn, so I not confuse he with his brother, also a lawyer.

Briefs started to be sent to Mr. Lunn of Pilgrim Chambers, and he also fielded telephone calls to answer what were probably not, to he, complex questions I had – mostly drafting issues.

I soon found Mr. Lunn had a close to photographic memory, so I wrote out what he said, later, for efficiency, putting a dictating machine close to the telephone receiver and simply recording what he said, asking my secretary to type it out – usually the drafting of a clause or a paragraph of a litigation pleading.

Often, Mr. Lunn would cite a judgement, by stating the book year, and even sometimes the page number, about where the text was on the page (indicating photographic more that route learning), and then repeated what the printed words were. I always checked – and his recall was remarkable, often word-perfect, even for an entire paragraph. His suggestion how far down a page the citation was also close to perfect.

For a while, I thought Mr. Lunn was running around his room and grabbing books from his library in his room and was reading aloud, so accurate was his memory, and so I developed in my mind images of John Cleese in a routine running up and down a library shelf grabbing books, as much on the basis John Cleese and Robert Lunn both have a subtle sense of humour, Robert Lunn can make a witty comment and few might realise it, and on the basis if a double act they would seem like similar fellows – but from the times I attended Mr. Lunn’s Chambers, I knew he was not reading out loud, from a book, he had that sort of memory.

Most barristers accept when receiving a steady stream of instructions, they receive and answer a few questions over the telephone without charging.

The quantum of telephone calls along those lines were such that after a few months I offered Mr. Lunn a weekly retainer – the telephone calls up to one every day or two, and sometimes two a day. He seemed at first started at the idea – he was happy with the number of telephone calls each week, even a few each day, however I was not comfortable with that, and so we agreed I could send a weekly set sum, I believe $100 a week in 1980s value, a fairly nominal sum given the value of the otherwise ‘free’ advice – and so the name of Mr. Lunn was added to the weekly ‘payroll’ list – not formally pay in the sense of taxation and workers compensation, but practically speaking, from a law firms point of view, payment for services.

From then, each day, I would put aside any file where I could not find nor was close to finding the answer after about five minutes work, and. mostly, once a day I would call Mr. Lunn on the telephone, dictation machine at the ready, and run through the files.

Sometimes, I would have faxed to his secretary an hour before any documents which were necessary, but limited to one or two pages – so the system did not become one-sided, and not as a substitute for a formal opinion upon receipt of a brief by Mr Lunn which was and is, after all, one main way barristers earn a living.

I must say, that system made life as a solicitor far easier – so the solicitor can be attending to things which are in known territory or ascertainable with not an excessive time expenditure, and thus obtain a barristers opinion when needed – which presents a client with the utmost efficiency and the lowest possible cost – well, in those days, in today’s era the optimum would be both solicitor and barrister each have a computer modem connected (with encryption) with software such that each can both edit a document from their respective offices, working on a conference phone – which, amongst other things, as the system with Mr. Lunn did, cuts out travelling time to a barrister’s Chambers, waiting tie in Chamber’s reception, and return, which most, I suppose, lawyers bill for.

I assume that system in the 1980′s was entirely ethical – and I am sure no one would lightly suggest otherwise, given Mr. Lunn was happy with the arrangement, for a number for years.

More than a few senior partners of opposing legal firms fielded for their clients a more detailed letter of demand, or reply to their correspondence, little knowing often the detail in terms of legal reasons why such and such was required to do or refrain from doing such and such, and even some case citations, was as a result of a telephone call to Mr. Lunn right at the beginning of a matter.

Indeed, a few times I was asked by an opposing lawyer where did you get that idea or argument from – given some things put were above that usually cited by most solicitors.

While I did not wish my source of advantage to become widely known, for tactical reasons – legal firms do compete – I did mention to a few the argument was developed by Mr. Lunn, they then asking how, and me then explaining the system, which, like the law firms verco printed (raised lettering) and blue coloured letterhead, was, I suspect, at the time unique, i.e. I do not think any other law firms were using that system – save larger firms with in-house senior barristers, there using an internal extension of their telephone system – because, apart from Mr. Lunn and I begin in different firms, technically, that was the only difference – geographic location: an external telephone call -v- an in-house telephonic connection.

It is true, however, the legal profession has been accused of adopting change slowly – about as fast as a fully fed snail moves toward its next meal.

Given that accusation, perhaps not analogy, is to some large extent true, innovation in law is sometimes a thing not accepted, even resented, for, wrongly, some lawyers see that as an attack on or derogation from their fee base, that is, the more efficiency, the less billable hours. That argument or mind-set is, I suggest, like the glass filled to the half way mark argument – how full is the glass? Some people say half-full and the others would say half-empty, some trick-cycalists saying, unless the question is loaded and all things being equal, that might have something to do with your basic positiveness or negativity at the time or even your basic level of optimism or pessimism (a trick-cycalist in word humour is a psychiatrist).

Efficiency in a firm which bills in time units eans less hours worked (per hour, per quarter-hour, per 10 minutes, per 5 minutes, almost always rounded up if in smaller increments, so most firm’s billing units are in smaller units – such and such bills $x per hour, and in 10 minute units, rounded up by units, not time measurement rounding, which is the only way to compare prices, an hourly rate alone does not do it, the time increment of billing and rounding policy is needed to compare hourly rates – is the rounding to the next highest minute or next highest unit of time, the difference can be large – e.g. 5m 23s becomes 6m 0s; or 1.1 units becomes 2 units, a unit being, say, 10 minutes per unit – in one case an extra 37 seconds is billed, but not worked, in addition to 5m 23s worked – a small mark-up; in the other 9 minutes is billed, but not worked, in addition to 11 minutes worked – massive mark up. Given if there is no rounding up or down to the closest unit, the total does not average out to zero mark-up, always rounding up per unit can provide a very large average mark-up per week, which becomes obvious if a programme like Timeslips is used, not so obvious in some other recording systems, e.g. the rounding is done by the person entering the billing data on a daily work-sheet beforehand in their head, before entering in writing the time elapsed, and thus the actual rounding per entry calculation is never recorded in the daily work-sheet, and so can not be worked out afterward, unless a person has perfect recall, thus no documents to discover giving the mark-up data, and no witnesses with memory. If a quoted rate is $x per hour, and the mark-up is not very minimal, the effective billing rate per hour can be practically a lot more, even, say, 130% or more of the quoted hourly rate, which might cause some clients some angst, unless explained beforehand, or covered in a fee agreement).

The effective hours saved through efficiency could be filled by leisure time or finding more clients and undertaking their work. Not really caring about efficiency, and filling the week’s hours with as many billable hours possible might be said the normal. Put another way, the hourly billing system alone does not suggest to its users efficiency.

In fact, that system Mr. Lunn and I developed, simply matched firms who had a QC or senior barrister in-house or on site – such as Ken McCarthy QC (of Young Street Chambers, located in the same building as the law firm Ross Mac, Ken McCarthy who fielded many requests a day, even dozens a day, for assistance from lawyers at Ross Mac (Ross, McCarthy & Nosworthy) in the same building. Therefore, in that way, in a small suburban law firm (the same for even a small city or CBD firm) I was able to have the same benefits lawyers in large firms had with ‘on-site’ senior barristers.

I suspect, at least in the early 1980′s, not many solicitors had such an arrangement with a barrister, given no one I knew from smaller firms had such an arrangement in place – the more usual situation a barrister being briefed well into such matters (which are not large enough to warrant, from the start, the cost of a barrister’s advice upon receipt for a formal brief prepared by the solicitor, which takes a considerable amount of time for solicitor and barrister alike, more where a barrister gets involved if the other side wont settle part way through the pre-hearing stage, when it becomes clear the matter will have to go to trial, then a barrister briefed, often then requiring amendments to pleadings, most or all by then having been drawn, engrossed and filed, after the barrister reads those pleadings for the first time, which is inefficient for a client, compared to somehow the solicitor obtaining cost-effective advice from a barrister at a very early stage, preferably before the cost of issuing proceedings is incurred, in those not large matters, the majority of matters not large.)

Robert M Lunn: Supreme and District Court Civil Rules 2006 South Australia

In addition, that system meant I was able to give advice very early on based on a barrister’s initial assessment of a matter – before a written brief was delivered, and often meant a matter did not get to the stage of a brief, either because the matter presented a not tenable argument or client position, or because it led to a clear advantageous settlement early on as the other side saw the details of the argument in the first exchange of letters and decided to settle to save costs for the client – again, a highly efficient system to prevent necessity or unwise litigation – a cost clients do not need, and which also clogs the court system up).

After a few years – and if I was paranoid I would say in pre-emotive attack by the Adelaide establishment, but I do not because I have no evidence – around the mid 1980′s, the Supreme Court offered said Lunn the position of Master of that Honourable Court, on the basis he re-wrote the Supreme Court Rules and Forms of Court. He accepted and did just that – Adelaide’s rules written by Mr. R. M. Lunn QC being considered some of the most advanced rules of their type in superior Courts.

So ended that most efficient means of giving clients advice, and then back to the more conventional way of dealing with barristers, and more travelling time in a motor vehicle, more waiting time in Chambers – till in the early 1990′s Mr. Chris Townsend on leaving Ross Mac became (due to a restrictive covenant, I seem to recall) a barrister for a while, he would kindly attend your office, which was the most efficient system of all – the file with typists are located in the solicitor’s firms.

Written 2012-02-09-1958 & 2012-02-10-0202 / 0307