Thursday, December 30, 2010

Bullstrode's Latin Phrasebook: Absens Haeres Non Erit

Absens Haeres Non Erit: Literally means that an absent person will not be an heir. In legal usage, the phrase refers to the principle that someone who is not present is unlikely to inherit a bounty.

As a firm believer in the veracity of this principle I spend a great deal of my time attending to the death-beds of ailing royals and wealthy but infirm socialites. In 1989 I famously travelled by air, land and sea for 3 days without sleep to be at the side of Hans-Adam II, Prince of Liechtenstein only to find the reports of the gravity of his illness had been grossly overstated and the good prince was in fact only suffering a mild cold.

While my commitment to not running afoul of the doctrine of absens haeres non erit has yet to result in me being bequeathed any real money or hereditary titles, I am determined not to miss out such an opportunity simply because I was not present at the relevant person’s passing. You can't catch a fish without your line in the water!

Christmas Tidings

Learned friends,

Whatever your religious beliefs and views on the evils of codified law, Christmas is a time for:

a) Gathering around the Nordic Yule goat and observing traditional Episcopalian Christmas practice by singing songs of praise to Jesus Christ like "Good King Wenceslas" and "Whence Is That Lovely Fragrance Wafting";

b) Sitting down with your family and reading aloud the dissenting judgment of Lord Justice Denning (as he then was) in Candler v Crane, Christmas & Co [1951] 2 KB 164 where he bravely held that a relationship enlivening a duty of care to future investors must be one where the relevant accountant or auditor preparing the accounts was aware of the particular person and intended use of the accounts being prepared; and

c) Getting heavily inebriated at Breakfast and appearing in the Waverly Local Court dressed as Santa Clause while announcing your appearance as celebrity raconteur and barrister Mark “Touchdown” Holden.

Truly a glorious time of year!

Along with those time-honoured rituals, like so many hard-working Australians, this year I will spend midnight on each of the 12 nights of Christmas reciting the last 60 pages of Ben Affleck's screen play for the Christmas classic “Reindeer Games” on the steps of the Downing Centre. I find these public recitations are more than just an important social good, they are a great time for reflection on the year that’s been. 2010 was a tumultuous year for yours truly; from the bitter lows of my unlucky (and possibly unconstitutional) loss in Eden Monaro and the continued silence in the mainstream media about my failure to be elevated to the High Court to the highest of professional highs, beating Jonathan Sumption QC in a best-of-three-real-tennis-sets match at my local jeu de paume club and successfully avoiding the inland revenue for yet another year. Indeed a time to remember!

I hope that you also had a successful year on your path to lawmanship.

To you and yours, seasons greetings and all the best for a happy, healthy and jurisprudentially conservative 2011.

Your obt. svt.,

Bullstrode Whitelocke K.C.

May the road rise up to meet you.

May your harm be reasonably foreseeable.

May the Court registry staff shine warm upon your face,

and complaints about your fees soft upon your ears.

And until we meet again,

May Denning MR hold you in the palm of His hand.

Thursday, December 9, 2010

A letter to Edward McGuire regarding 'Junior MasterLawman'

Dear Edward Joseph McGuire AM,

I write to you in your capacity as de facto programming director for Channel Nine, with what I consider to be the most exciting television opportunity since the second season of William Cosby’s ‘Kids Say the Darndest Things’.

With some considerable degree of interest, I have observed your ongoing stoush with your rivals at Channel 10 over the past few years. I applauded when you answered Channel Ten’s introduction of ‘Californication’ with Charlie Sheen’s irrepressible ‘Two and a Half Men’. I gasped at your audacity when Ten’s ‘Bondi Rescue’ found itself up against Charlie Sheen’s laugh-a-minute ‘Two and a Half Men’. And I marvelled at the way that you undermined Channel Ten’s gritty Australian drama series ‘Good News Week’ with yet another round of Charlie Sheen’s half hour long laugh-fest ‘Two and a Half Men’.

As I write this you are, however, possibly at your lowest ebb. Indeed, you may feel that no amount of cocaine and prostitute fuelled family comedy will undo the damage wrought on your brand by Channel Ten’s incredibly successful ‘MasterChef’ and ‘Junior MasterChef’ franchises.

Fear not, Mr McGuire. Unlike Ricky Ponting when he considers who to throw the ball to or the voters of Myanmar, you have options available to you.

You are all too familiar with concepts I have previously pitched to your station including “Sea Shanty Singing Bee with Uncle Bullstrode” and “Summer Clerks Gone Wild” but one option that is available to you may just change the paradigm of Australian television: ‘Junior MasterLawman[1]’. Twelve contestants, aged between 8 and 14 compete to win Australia’s most coveted young professional title ‘Junior MasterLawman’. Each week, contestants will be challenged to perform a feat of lawmanship, to be marked by a celebrity panel comprised of Matt Preston, Mike Whitney[2] and a full bench of the Supreme Court of New South Wales Court of Appeal. My thumbnail sketch of likely challenges, in increasing order of complexity/difficulty, include:
- completing an ASIC form 312;
- completing an ASIC form 484;
- drafting a design and construction contract in relation to a piece of major strategic infrastructure between the hours of 10pm and 5am on limited instructions and with a crippling hangover;
- entering into a sham divorce settlement to protect the contestant’s assets from the skeletal hand of the ATO, evading ATO process for more than 3 years and ultimately declaring bankruptcy, at all times without paying a cent towards public coffers;
- appearing in a High Court of Australia special leave application against Bret Walker SC;
- explaining the rationale behind, and operation of, the Personal Property Securities Act, with a particular focus on joint-venture cross charges.

A youngster discovers, too late, the dangers of the contra proferentem rule

One can instantly imagine families across the nation crowding around the television set every Sunday night, wondering if little Johnny will remember to include a subrogation clause or whether plucky little Jess from Launcestion will ever remember ambiguitas verborum patens nulla verificatione excluditur!

Obviously the merchandising possibilities are limitless. It is not unreasonable to expect glossy hard cover books entitled “Comfort Drafting with Justice Hammerschlag” or “Whitelocke and Preston: the Perfect Food and Deed Poll Pairings” to cover the coffee tables of a Nation that cannot get enough of the show or its unlikely, rapscallion stars.

You are a simple man, Mr McGuire, and no doubt your mind is spinning at the obvious commercial possibilities presented by Junior MasterLawman. I will allow you a moment to pause and reflect.

Agreed, an amazing idea.

If you are interested in pursuing this matter further, please contact me at the address below:

T Bullstrode Whitelocke KC
Mosman, NSW 2088

[1] © T Bullstrode Whitelocke 2010
[2] Mr Whitney has confirmed that he would ‘appear at the opening of an envelope’ and that he would be willing to wear his referee’s uniform from ‘Gladiators’ if required.

Wednesday, December 1, 2010

Ask Bullstrode: What to wear to a Masquerade Ball

On the urging of the good people of Wollongong, I have decided to re-enliven my much loved advice column, featured in the Society Pages of the Illawarra Mercury in the 1980’s, entitled “Ask Bullstrode”. In its heyday, my column was the Blackstone’s commentaries of the self-help world, answering any and all questions posed by my readership on topics of importance to the people of the Illawarra, including relationship advice and, of course, statutory interpretation.

If you have any problemn that you simply cannot resolve, like that of young Jeremey Tompkins set out below, please do not hesitate to write me at Level 8, Albert Bathurst Piddington Chambers, 177 Phillip Street Sydney 2000, or at

Dear Mr Whitelocke [K.C.],

I have been invited to a 'Masquerade' Ball which is being held at Doltone House in a few weeks' time. Not having been to an event such as this before, and keenly aware of the need, as an Officer of the Court, to preserve my dignity and decorum, I wonder would you be so good as to give me some direction as to what I should wear?

Many thanks,

Jeremy Tompkins, Randwick.

Dear Jeremy,

Indeed a good, and important, question. Thank you for having the good sense to have sought my advice. I first attended a masquerade ball at Palazzo Labia in Venice in 1951, which was hosted by my dear friend and long time bocce rival Carlos “the Jackal” de Beistegui. This was a surprisingly riotous affair after which I was wrongly accused of all sorts of nefarious acts. Nevertheless, the tangible social and legal benefits, and the endless possibilities arising out, of being masked in public were made abundantly clear to me that fateful night.

Despite my profound enjoyment of this form of recreation in my youth, I have unfortunately not been to a masquerade ball since Lionel Murphy’s 40th birthday party in 1962. That soiree was billed as the party of the year. Emboldened by the spirit of the times, I foolishly attended disguised as the redoubtable 1920’s Country Party Leader Earle Page. As was all too predictable with the benefit of hindsight, I was immediately set upon and beaten viciously by environmentalists, hipsters and other Labor Party apparatchiks. Since that time, I have frankly been too scared to attend any event where I cannot be certain that such lowlifes are not in attendance (the other edge to the double edged sword of being masked in public).

I do remain, however, Australia’s foremost expert on appropriate dress at masquerade balls. In your case sir, as an officer of the court, common decency would demand that you strictly adhere to the dress code laid down by the 18th Century ducal court of Burgundy. As I’m sure you’re aware, this will mean you should wear a Van Dyke beard, a venetian carnival mask and have the rest of your costume made entirely from flax and pitch. Presumably this is what you were planning to wear in any case.

Kind regards,

Bullstrode Whitelocke K.C.

Friday, November 19, 2010

Doing a runner from the Cab-Rank Principle

Recently, while haranguing my old sparring partner Kerry O’Brien about the increasing sexualisation of ABC’s formerly family orientated “Songs of Praise”, Kerry accused me of ‘playing the man, not the ball’. He pointed out that my criticism of the ABC and Songs of Praise was merely a politically correct way to pan the embarrassing aesthetic decline of Aled Jones and the team, a soft target for a populist rant if ever there was one. Not for the first time in the conversation, I remarked upon Kerry’s perspicacity and the fearsome orange glow of his head-hearth, which in days gone by would not doubt have served as an invaluable communication device between distant villages in times of Viking attack.

Mr Kerry O’Brien, a constant bulwark against Viking attack

Kerry was, however, as always, correct. I was like a politician, railing against ‘people smugglers’ instead of coming clean to the electorate and explaining that, in fact, they didn’t care at all about a couple of Indonesians making a dirty buck, but were kept awake at night by the fear that one day their coffee on Avenue Road, Mosman, would be served by someone whose ‘single origin’ was, like the coffee, from somewhere unpronounceable, causing them to make awkward jokes about long blacks and Arabica beans while backing out the door.

As one would expect for a man of my seniority and media appeal, this was not the first time that I had been rightly accused of this very vice. Now, dear reader, cast you mind back to the summer of ‘92 when I appeared on a special pilot edition of Q&A on a panel comprised of Sir Gustav Nostle, Hazem El Masri, Lee Lin Chin and Che Cokatoo Collins, to discuss multi-culturalism in the early nineties. As the show commenced I immediately launched into a lengthy retelling of the development of my famously successful tactic of demonising a group of individuals, already unpopular in the general public, in order to surreptitiously take shots at a political sacred cow. Of course I am referring to my famous campaign against taxi drivers in order to bring down the cab-rank principle!

Throughout history, the cab-rank principle has been the unspoken cormorant around the neck of barristers the world over. This is because an unfortunate (and, if I may be so bold as to suggest, unforeseen) bi-product of the cab-rank principle is that you find yourself having to act for literally anyone who finds their way to your door, regardless of how unpleasant their cause of action or personal hygiene! This absolute nightmare, which my glorious forebear Bulstrode (sic) Whitelocke fought so hard against in the 1600s, continues to haunt us today! Well it did, until I took matters into my own hands.

Bulstrode [sic] Whitelocke, a man of uncommon courage and benevolence

Throughout my career at the Bar I had spent many an idle Tuesday afternoon reflecting upon how I could tear down the anti-competitive nonsense of the cab-rank principle, without undermining my reputation in the community as a powerful advocate of social justice and “the little guy”*.

After considering this proverbial Scylla and Charybdis at length, it occurred to me that if I launched a vitriolic campaign against taxi drivers, I could create a situation whereby their passengers, the real cause of my discomfort, would simply not be able to avail themselves of my sought after legal acumen.

I started testing the public’s temperature to this position on my weekly talk-back radio appearances by letting it be known that taxi drivers are motivated by profit. These human traffickers were demanding payment for driving passengers to their desired destinations, often in amounts that would make Jonathan Sumption QC blush, most particularly when coming from the airport or when the taxi had been pre-booked!!

Understandably, the public didn’t like what it was hearing and the reassuring voice of Uncle Bulli was there to keep stoking the flames. Slowly but surely I ramped up my attacks until stopping cab-drivers and the ever-increasing arrival of their passengers all over Sydney became the most important and divisive political issue of the day. This masterful political strategy culminated in me using my influence in the NSW government to establish an offshore processing centre for taxi passengers on Pitcairn Island.

With stage one complete, the second phase of my inspired plan was to ride the wave of grassroots opposition to taxi drivers and their miserable human cargo by announcing that I would read my professional and ethical obligations under the cab-rank principle strictly. That is, that the cab-rank principle did not oblige me to take a brief unless my prospective client had literally arrived by taxi. Furthermore, I would only accept clients that arrived by means of a taxi that had been processed offshore and which originated from the regional cab-rank in Pitcairn. I then created a further (objectively fair but substantively unfair) criterion** by only receiving clients between 3 and 4pm and 3 and 4am – the time where no taxis in the world operate, not even water taxis from the South Pacific!

Looking for a taxi at 3pm in downtown Adelaide

In a matter of days I was able to rid myself of the burdensome nightmare that was the cab rank principle without ever having to say a bad word about the people for whom I was meant to act!

As you can imagine, this compelling tale took up the full hour of the show and thankfully neither Tony Jones nor any panellist (not even the usually effusive Ms Lin Chin) were able to get a word in edgewise. I then, naturally, exercised the privilege against self incrimination and refused to take any questions from the audience whom I feared to be filled with unsympathetic hipsters and Mark Latham.

This legendary performance allowed the ABC to receive funding for a full season of Q&A within only 27 years, a mere blink of the eye in the scheme of things. The ABC’s debt of gratitude to me remains, however, tragically unpaid.

* I had spent years as the President of the Senate Committee for Access to Justice during my time in parliament and I was, at the time, particularly eager not be seen to do anything that would impinge on my chances of being elevated to the High Court under the increasingly radical left-wing Labor Government of the day.

**My thanks to Emile Durkheim and Anatole France for that little pearler.

Thursday, October 28, 2010

The Rent is Too Damn High

As a young man, like so many of my friends, I had an informal profit-à-prendre (in gross) over large tracts of land in Sydney, from which I took natural resources, wild game and briefs. After a time of this carefree existence I decided I needed to establish a more formal base for my burgeoning legal practice. It was this desire for a possessory interest in land that inspired me, in the late 1940s, to turn the first sod on the ground that later would become Albert Bathurst Piddington Chambers in Phillip Street. At the time, the standard rental arrangement with the James McGirr New South Wales State Government was that if you cleared any land south of Bridge Street you could rent it for 20 years for a literal peppercorn (being highly sought-after at the time for their laxative qualities).

As you can imagine, the gross margin my Practice ran at in those heady days of free rent and relentless lawsuits over Victoria’s controversial success in the 1947 Claxton Shield was the envy of legal practitioners the world over.

Unfortunately since that time, through a slow and pernicious creeping death of incremental hikes, the rent on my chambers has now reached astronomical proportions. These days I am literally living hand to mouth while my landlord grows fat off the fruits of my labour. This situation has become untenable and it is for that reason that I am pleased to announce I have engaged my dear friend and regular New York gubernatorial candidate James McMillan as the collective bargaining agent for the Barristers of Piddington Chambers to take up our noble cause against Barristers' Chambers Limited in our forthcoming rent review.

Wednesday, October 13, 2010

Lawmen in Popular Culture

I recently constituted a Citizens' Assembly, with the aim of reaching a community consensus as to whether the Spectrum Plus approach to the characterisation of fixed charges over book debts ought to be persuasive in Australian courts.

It was, understandably and like most Citizens’ assemblies held to solve incredibly technical problems, a free-ranging and jovial affair, that touched on many areas of community concern about this pressing issue. In one of the many, many moments of levity that punctuated the discussion, Geert van der Staiij, my Dutch neighbour and a possible future 'non est factum' test case, remarked "Mr Bullstrode, why do lawyers think that people like to hear them speak?"

It was a good question and one to which I spoke at length. While my response largely centred around the growing acceptance of my controversial theory that those in our society of higher moral and intellectual capability (lawyers) are under a natural law fiduciary duty to impart their wisdom on those around them*, minutes 22-24 were dedicated to the prevalence of lawyers in pop culture. The highlights were:

(a) Few people know that David E. Kelly was inspired to write ‘The Practice’ after witnessing footage of me in chambers quietly reading a brief, sipping port and consulting the CLRs. Ultimately, studio heads had their way and the pilot episode ‘Bobby Donnell reads Perre v Apand Pty Ltd 198 CLR 180’ was replaced with something boring about criminal law, sex and a law firm in Boston. Nevertheless, many neutral observers are still struck today by the many similarities between myself and Mr Robert Donnell.

I am struck today by the many similarities between myself and Mr Robert Donnell.

(b) The runaway success of an episode of “20 to 1” that I co-chaired with my dear friend Bertrand Newton entitled “20 to 1 most outrageous uses of the rule in Foss v Harbottle”. Apparently Channel 9’s switchboard lit up when the famous incident of the Rolling Stones ratifying an alleged wrong by simple majority on their 1973 tour of North America was listed as Number 1!

(c) An account of the statistically proven fact that lawyers are deeply hilarious individuals. Consider successful comedians such as Tom Gleisner, James O’Loughlin, Sean Micalleff, Judge Joe Brown and Neville Wran who all obtained their comedic grounding via the time-honoured route of a bachelor of laws degree. The relationship between legal learning and hilarity is, of course, not a recent development. Indeed the Third Protectorate Parliament under the speakership of noted legal humourist Chaloner Chute was considered the “Packed to the Rafters” of the 1600s.

*While this may seem pure vanity, it is, in reality, an incredibly heavy burden to bear. It regularly takes me more than 4 hours to traverse the 80 odd metres from my Phillip Street Chambers to the Supreme Court, as I am obliged to lecture every single non-lawyer I come across on:

(a) my many lifetime achievements;

(b) their many failings (based on my reasonably formed initial perceptions), both remediable and irremediable; and

(c) the means by which any such remediable failings may be rectified.

Wednesday, October 6, 2010

Law Society of NSW - Council Elections

Lawmen of New South Wales,

Commeth the hour, commeth the man. I am writing to you by electronic transmission to ask your support as I seek election for the Large Firm position at this year’s Law Society Council elections. This email is unrelated to any I may have previously sent to your in your capacity as a potential conduit of Nigerian financing opportunities. For the avoidance of doubt, those offers remain open.

At literally any moment now you will receive your ballot papers from the NSW Law Society. Here is what I will stand for when I am elected to the Law Society Council:

a) The wholesale repeal of CLERP 7, in all of its insidious guises.
b) The appointment of Wyatt Roy and Justin Bieber to the Juvenile Justice Sub-Committee of the Law Society of NSW.
c) Using the corporations power to overcome the High Court’s lamentable Octaviar decision.
d) Convening a citizens’ assembly to resolve once and for all whether there is a fifth category in Masters v Cameron.
e) Outlawing severability clauses.
f) Stopping jurisprudential waste and turning back the boats.

For those of you that are unaware of my many, many distinguished years as a Lawman, I have set out below a brief ‘snap shot’ of career highlights:

· Career victories against Sir Garfield Barwick: 2

· Golden Gavel winner, 1945

· Internationally renowned authority on the training and discipline of hounds

· Author of Whitelocke: On Lawmanship 3rd Edition and countless other learned texts, including ‘Mary Sidney Herbert: A Winsome Spinster’ and ‘The Separation of Canon and Common Law: Eight (8) Centuries of Legal Madness’

In short, I will bring erudition, accountability, dignity and a detailed knowledge of the training of hounds to the role of large Firm Member, which for too long has been dominated by the vested interests of solicitors who work for large firms.

If you agree that these ideas are right for our time, then please vote for me in the Law Society Council elections.

A faint heart never won a fair maiden. Be brave and vote.

Kind regards,

Bullstrode Whitelocke K.C.
Knight of the Thistle, Order of the Companions of Honour, Knight of the Hutt River Province, President of the Australian Chapter of the Stone Masons, 18 times Heraclitus Society Man of the Year, The Leverhulme Medal for the application of Heraclitus to Chemistry, The Royal Guelphic Order, Knight Grand Commander of The Most Eminent Order of the Indian Empire, Kaisar-I-Hind Medal, Officer of the Order of Australia, Australian Antarctic Medal, Champion Shots Medal.
Albert Bathurst Piddington Chambers

Tuesday, September 21, 2010

Carry on Whitelocke, Openly

Way back in the 1950s, long before vacuum cleaners and Dr Phil ruined the work ethic of domestic help throughout Australia, Sydney was a very different place. A largely lawless and agrarian city (much like modern day Adelaide), a good portion of the city was covered by a mixture of ambitious pastoral lands and dense virgin bushland, teeming with abundant wildlife. Whilst scurrying from chambers to Court it was by no means unusual to encounter wild, lawless men or even game such as the nail-tailed wallaby or the ever-aggressive Green and Golden Bell Frog on one’s way to Court.

it was by no means unusual to encounter wild, lawless men…

For the obvious reasons it was essential to be heavily armed at all times.

In time, our habit of bearing arms for personal protection developed into the genteel practice of barristers carrying ornate pistols on their hips* at all times. In these stylish and practical days the seniority of a barrister could instantly be ascertained by the make and calibre of the pistols he carried and easy laughs could be had at the expense of the many, many barristers with ‘double barrelled’ surnames! King’s Counsel would wear Colt .45s with carved ivory grips and were always accompanied by a small team of specially trained juniors to carry and operate light artillery on their behalf.

Having become so accustomed to being “packing heat” whilst striding about Philip Street, I was shocked to learn that this practice had fallen into disuse in many overseas jurisdictions**. Imagine my astonishment when, in the mid 70’s I attempted to bring a semi-automatic rifle and a decorative stock whip to a party hosted by Nelson Rockefeller and Henry Kissinger (for then president Gerald Ford) only to be subject to the outrageous indignity of being asked to leave these essential parts of my carefully considered outfit in the cloakroom. Luckily enough, the furious and wide ranging tirade I unleashed at the doorman, which traversed the Constitution, Boilermakers (I persuasively argued that Geoff the Doorman was improperly acting as a Chapter III court), Magna Carta, the FIFA Laws of the Game, the Destruction of Wild Dogs Act and the Gentoo Code, was overheard by the vast majority of America’s right wing intellectual establishment who, moved by the jurisprudential perspicuity of my arguments, focussed the furious power of their legal learning into the matter. It soon became accepted that the Second Amendment of the American Constitution ensured a right for all citizenry to not only bear arms, but to be able to do so openly and without fear of molestation from the long arm of the law. Over time, my principled stand on that steamy day in October became known as the genesis of the “Open Carry” movement.

Before long, the Open Carry movement swept America, returning the country to the golden days of the 1820s where every citizen openly bore arms and all interpersonal disputes were settled quickly and decisively. I consider the opening scene in “the Last Boy Scout”+ to be the high watermark of this movement, a cinematic moment inspired by the short period I coached Little League Grid Iron in Oakland, and regularly encouraged my players to Open Carry during playoff games.

Thanks to me, Americans, unlike Australians, can buy coffee in safety.

An Open Carry fishing trip on Lake Michigan

Sadly the liberties protected by the Open Carry movement have not found widespread acceptance in Australia. These days, it is regularly said that the right to bear arms is as ridiculous as the right to arm bears. This statement continues to be patently wrong and was made many years before my successful program of conscripting and training koala bears to patrol mosman, protecting it against the tide of Catholic boat people that would otherwise overwhelm it. Unfortunately neither major party included Open Carry as a major policy item at the last election, and in the many drafts of the proposed Bills of Rights for Australia I have criticised, I am yet to see Open Carry receive even the most cursory of recognition. No wonder our country is in such a state.

Of course, being the wag I am, although I am no longer permitted to Open Carry firearms in Court, I continue to follow the principles of the movement in my own way. The most obvious manifestation of this is my habit of ‘Open Carrying’ prerogative writs. Rarely will you see me in public without an openly displayed blank writ of mandamus sticking out of my belt. The threat is essential. Prevention is better than cure.

* Ironically, in 1992 my impulsive decision to fire one of these pistols at Young J proved the inspiration behind the introduction of the metal detectors in the New South Wales Supreme Court. A further erosion of the right of Open Carry in Australia.
** Not, however, in Indonesia where the colourful gun toting barrister Paris Hotman Hutapae remains the paradigm of a modern warrior/scholar man of the law.
+ when a troubled footballer who knows his rights opens fire on his rivals as they try to tackle him.

Wednesday, September 8, 2010

Bullstrode's Latin Phrase Book: Ab Ovo

Ab ovo usque ad mala: Literally means from the egg to the apples.

This phrase gained prominence after its usage in Horace’s Satire 1.3 and has come to mean "from beginning to end". Apparently this meaning derives from diet of Ancient Rome, where the main meal of the day began with an egg dish (Florentine or Benedict one would hope) and would end with some fruit. In legal phraseology, ab ovo has to connote thoroughness – i.e. to read a document from beginning to end.

As you will know from the section in On Lawmanship 3rd Edition on proper legal drafting, as a firm believer in “top and tailing”, I rarely, if ever, read a document from beginning to end. Life’s too short. When I say to clients I will review their documents “ab ovo”, I quite literally mean I will have a summer clerk review the document (lightly) while I recline nearby eating an egg followed by a red delicious, usually while wearing a toga.

Friday, September 3, 2010

Alternative Dispute Resolution

Our cousins across the pacific (hereafter “Americans” and “The People That Brought Everybody Loves Raymond Into the World”) consider themselves innovators. To give them their credit, it is true that Americans invented the internet, global warming and many of the socially disruptive forms of devil music that currently plague our wireless airwaves and encourage our young people into risky romantic encounters with drugs and hipsters like Natasha Stott-Despoja.

Indeed, after hearing that it was recently (sensibly) suggested that a contractual dispute be determined by a man vs werewolf push up competition (Werewolf Pushups ADR) one might be forgiven for thinking that The People That Brought Everybody Loves Raymond Into the World were legal innovators. However, keen readers of the Whitelocke loose-leaf service would be well aware of some of the more innovative alternative dispute mechanisms I have used over the years, that long pre-dated contractually decisive feats of strength between man and werewolf.

While I am famed* for my assiduously litigious nature** and would never actively seek to circumvent the long and expensive court process, I have on behalf of others applied my mind towards engineering innovative alternative dispute resolution solutions.

For example, in 1964 I suggested that a seemingly intractable joint venture company deadlock dispute be settled by a “Race Around the World”. The Race garnered national media attention and proved a highly successful outcome for my client the Bank of Adelaide. Immediately after the counter-party to the dispute, Robert Holmes à Court , left Australia, the Bank petitioned the Court for a just and equitable winding up of the joint venture company due to the likelihood that the ravages of dysentery and various local wars in Africa and Central America would almost certainly see Mr Holmes à Court perish during the race. My client was able to complete the purchase of the remaining 50% of the shares at fire-sale prices before Robert would return to Australia to national celebrity but financial ruin. I was the first to throw the confetti at his welcome back ticker-tape parade and to this day we remain the firmest of friends.

In the mid-90’s I pioneered the use of the following clause for all dispute resolution:

1.1 Notification of Disputes
(a) A party must not commence any arbitration or court proceedings relating to any material dispute arising out of or relating to this deed (Dispute) unless it has complied with the provisions of this clause.

(b) A party claiming that a Dispute has arisen must give written notice to the other party stating that a Dispute has arisen and setting out the nature of the Dispute (Dispute Notice).

(c) Within 25 Business Days of receipt of a Dispute Notice, each party must nominate 13 current employees of the legal representatives who acted for that party in connection with the deed the sublect of the Dispute (Team) and give written notice to each other party of the identity of those representatives.

1.2 Dispute Resolution
(a) Within 20 Business Days of the date of a Dispute Notice, each Team must meet at Lang Park (the Cauldron) to resolve the Dispute by playing 80 minutes of rugby league (the Match). All aspects of the Match, except the fact of its occurrence, must be kept confidential and all communications and interaction between representatives at the Match are made under “State of Origin” conditions, including (without limitation) by taking one game at a time, on a without prejudice mate vs mate, state vs state basis and, to the maximum extent permitted by law, the Match will not be subject to review by the NSWRL Judiciary or other Judicial Body.

(b) The result of the Match is final and binding upon the parties and is not subject to review or appeal except in the case of manifest video referee error of fact.

During the wonderful period in the 90s when this clause was considered boilerplate in many commercial contracts, I employed the following people on part time or casual basis:

Mail room

Terry “the Axe” Gillmeister

John Lomax

Glen Lazarus

Quentin Pongia

Ruben Wiki

Jarrod McCracken

Gordon Tallis


David “Cement” Gillespie (made a surprisingly good latte’)

Paul Sironen

Hitro Okesene

Aussie Joe Bugner

Jonah Lomu

Va'aiga Tuigamala

Foreign counsel (not Australia Qualified)

Adrian Morley

James Brian Hellwig (trading as “the Ultimate Warrior”)

The Houston Oilers’ Robert Brazile and young Baltimore linebacker Ray Lewis

The above persons, with me obviously scheming out of dummy half, ensured that all my clients successfully resolved their disputes and made it very difficult for their opponents to recover (financially and physically). The enthusiasm with which young employees like Cement, Sirro and Ray Lewis enforced exceptions to the parol evidence rule upon pasty and terrified summer clerks from other Sydney law firms was a sight to behold!

Ruben Wiki making another urgent internal mailrun

* Indeed, worshipped in Guam the spiritual home of aggresive litigation.

**Having incorrectly been deemed a vexatious litigant on any number of occasions

Wednesday, August 25, 2010

Eden-Monaro Decides: My Seven Point Roadmap

After another day of dilly-dallying by our elected representatives, I have decided to take real action in order to establish a workable government for Australia. I have set out below my seven non-negotiable demands which must be complied with by either party hoping to garner my crucial* support to form government. You will also find these demands nailed to the door of all churches, post offices and public restrooms in Eden-Monaro.


Requests for information

1. I seek access, under the ‘caretaker conventions’, to advice from Secretary of Treasury Ken Henry as to the true whereabouts of Lord Lucan, Phar Lap and Harold Holt.

2. I seek urgent briefings on subjects yet to be determined from the following persons:

a. Kate Ellis;

b. Kerry O’Brien;

c. Harold Holt; and

d. The Lion of Bradfield – Dr Brendan Nelson.

3. I seek briefings from all other caretaker Ministers, Shadow Ministers, their next of kin and all their staffers to discuss their itineraries, broken down hour by hour, for the next three years. I estimate this briefing process will take the best part of those three years.

4. I seek advice as soon as possible on your plans to work with the Parliament chefs to both improve the quality and reduce the price of lasagna. I would also like advice on timelines and actions for disbanding the Federal system of government, increasing the number of private members bills related to Heraclitus and the rule in Hadley v Baxendale, outlawing 90 second statements (or any statements for that matter shorter than 50 minutes) and “sexing up” question time (I suggest silver screen heart-throbs Tony Jones or Billy Zane be appointed Speaker of the House as a matter of urgency).

5. I seek a commitment to explore all options from both sides in regard appointing me Prime Minister, and a willingness to at least explore all options to enable the United Australia Party, notwithstanding the fact we only have one elected** representative, to reach a majority of greater than 76. Included in these considerations must be advice on how to disband the House of Representatives (except for the seat of Eden-Monaro) and have the nation governed by a combination of the Senate and Krytocracy, and a proposed timetable for this to happen.

6. I seek a commitment in writing as soon as possible that if negotiations are to take place on how to form Government, that each of you will negotiate in good faith and with the interests of Elizabeth the Second, by the Grace of God Queen of Australia and Her other Realms and Territories, Head of the Commonwealth as the only interest. In this same letter of comfort, I seek a written commitment that whoever forms majority Government will commit to a 99 year term, and for an explanation in writing in this same letter as to how this commitment to a 99 year term will be fulfilled, either by enabling legislation, force or other means.

7. I seek advice as soon as possible on a timetable and reform plan to increase political donations, repeal the un-constitutional “truth in advertising” reform, CLERP and the age limit for appointment to the High Court.

I will now be heading to my Daintree property to hunt Cassowary, a long-standing appointment with the Governor-General (unrelated to, but potentially useful in resolving , this political deadlock). I have agreed to be back in Canberra on Monday for my coronation.

*Assuming postal votes get me over the line in Eden-Monaro

** Assuming postal votes get me over the line in Eden-Monaro

Friday, August 20, 2010

Eden-Monaro Decides: An Open Letter to the People of Eden-Monaro

Citizens of Eden-Monaro,

Tomorrow is a very important day for our fledgling democracy. If you are anything like me, you will wake up at approximately 4am, have a glass of riesling then hunt local birdlife until dawn. It is two hours after this most symbolic of dawns, when polls open, that I ask you to write down my name. In that poll booth, whether in the Berridale Community Centre, the Cobargo school of Arts or the Queanbeyan District Hospital, you will have the choice to meekly continue down a path that leads us all to certain ruin, or to take a sharp right and boldly stride into a glorious new future.

Although you need no reminding, here are some of my many achievements which make me uniquely qualified to govern Eden-Monaro and which should help you make that brave and necessary decision:

i) I have received countless personal awards, including but not limited to the Knight of the Thistle, Order of the Companions of Honour, Knight of the Hutt River Province, 18 times Heraclitus Society man of the Year, The Leverhulme Medal for the application of Heraclitus to Chemistry, The Royal Guelphic Order, Knight Grand Commander of The Most Eminent Order of the Indian Empire, Kaisar-I-Hind Medal, Officer of the Order of Australia, Australian Antarctic Medal, Champion Shots Medal;

ii) I invented the after-dinner filibuster to avoid awkward conversations and masterminded the 1975 dismissal;

iii) I am close personal friends with German Chancellor Angela Merkel as well as cricket luminaries Sir Vivian Richards and Paul “Blocker” Wilson;

iv) I introduced both the Crown of Thorns Starfish and the European Carp into Australasian Waters;

v) I am, by some distance, the oldest candidate ever to run for the House of Representatives; and

vi) I have shot 3 Asiatic bears, 2 of which fatally.

But enough about me, tomorrow is about you and your future. I trust you will make the right decision.

My fondest wishes to you all,

Bullstrode Whitelocke K.C.
(by electronic transmission)

Tuesday, August 17, 2010

Eden Monaro Decides: A day in the life of a hardworking candidate with uncommonly good posture

Gentle reader,

A somewhat surprising fact that has come to my attention throughout this campaign is that the young folk in the boxing clubs and calisthenics clinics of the Southern Highlands are interested in the day to day of an election campaign. And so, a brief insight into an average day in the life of a hardworking candidate for the seat of Eden Monaro.

6am: Early morning constitutional. Tony Abbott religiously rides 38 km every morning to prepare himself, mentally and physically for the day ahead. I have never owned a bicycle and am deeply suspicious of those that do. My preferred form of early-morning exercise is a stimulating 4 hour hunt of the elusive Hoary-headed Grebe with my good friends Matt Preston and Ben Cousins.

10am Hearty breakfast of Hoary Headed Grebe on sour-dough with a glass of sherry.

11am Strategy planning session at campaign HQ (the front room of the Pambula bowls club) with my campaign advisers. This is an intense 15 minute session at which we discuss the latest numbers: namly the poll results on "Entertainment" section, the latest European Carp population figures and the mysteries of pi.

11.15am - 1pm Radio appearances. In this exciting technological age every candidate for election must put his best foot forward in all forms of media. I was lucky enough to be described by Barry White as having 'the voice of an angel' and leverage off this at every opportunity. Of course, I insist that all radio appearances are scripted by my advisers, that my commercial sponsors receive an even handed treatment and that I am permitted to bring my vintage 1950s 'Hornblower' microphone.

So, there you have it - another exhausting day comes to a close!

Eden-Monaro Decides - Free Sauce? Not on my watch!

I cannot sit idly by while the Labor Party wastes the Howard Government’s surplus, first on stimulus payments for electronic poker machine usage and now on free tomato sauce:

As a famous food author*my commitment to proper diet and table manners is known the world over. For example, the first question I ask a prospective Reader during my gruelling twelve day interview process is as follows:

Assembled before you are fourteen (14) forks of varying length. If served a terrine of Queensland spanner crab with radicchio, confit eschallots, paysanne of root vegetables and beurre noisette emulsion, which three (3) forks would be required to complete the meal successfully?

If the plucky youngster answers that question correctly I then make them eat a whole copy of Meagher, Gummow and Lehane – just to give them an introduction to the bitter-sweet taste of Equity.

In order to impose these high standards on my electorate, I am hereby announcing that the following foodstuffs will be banned in Eden-Monaro if I am successful on Saturday:

a) Meat Pies and/or Sauce;

b) Intentionally left blank; and

c) All forms of Fish & Chips (except where the fish used is European Carp).

*See “Cooking with Hiraclitus” or “Uncle Bulli's Comfort Food for a Rainy Day spent Drafting

Monday, August 16, 2010

Eden-Monaro decides: Further Policy Initiatives

Having just received the latest Nielson Poll, which sees me an alarming 48 points behind my enemies Gazard and Kelly, I have decided to announce some non-costed, last-minute policy initiatives which I sincerely believe should give me the necessary bump over the line:

a) Literal barrels of pork for every man, woman and child in Eden-Monaro. The pork is sourced entirely from Tantawangalo farmers and, like the Labor government’s economic stimulus package, will also be paid to expatriots and the recently deceased;

b) I will build a first-class graduate research university in Tumut. This university will be based on INSEAD but will instead be called “INSTAD” (which stands for Institut Tumut d'Administration des Affaires). Classes will be entirely taught in French and the only courses available will be a PhD in Philology, PhD in Seneca the Younger and a PhD in Lucretius. Tuition will start at $42,000 per annum (note: there will be no HECS places); and

c) I will create a scheme to collect water from the Snowy Mountains. This brilliant idea will see us finally utilising Eden-Monaro’s natural resources for financial gain! I propose to divert water through tunnels in the mountains and then store it in dams (This will have the added benefit of increasing the possible habitats for European Carp). Power stations will then use this water to create electricity with any excess water pumped back into the Murrumbidgee River. I estimate that, all up, this project will take twenty-five years to complete and cost approximately $820,000,000. It will also lead to massive migration into Eden-Monaro which, while being superficially inconsistent with my radical views on immigration, will ultimately help us build the type of standing army required to secede from the Commonwealth.

If none of these strategies work, I will be hoping Mark Latham’s televised plea for people to hand in blank ballot forms is successful. This idea is based, I assume, on my dear friend Richard Pryor’s unorthodox 1985 New York mayoral campaign - A television news article on which is set out below. The reason this course of action would have such a profound impact on my campaign is because my “core” typically watch repeats of Gardening Australia rather than commercial television on a Sunday night and are therefore likely to be immune from Latham’s undoubtable charms.

Richard’s groundbreaking campaign strategy

Saturday, August 14, 2010

Eden-Monaro decides: Lady Gaga and Lady Southey onboard

My campaign for Eden-Monaro received a filup today, with colourful folk singer Lady Gaga agreeing to team up with Lady Marigold Merlyn Southey in a one off performance at my next community meet and greet at the Bermagui Indoor Sports Stadium badminton courts.

In what the local press has described as a 'poignant tribute' and 'reminiscent of Elton John's remake of Candle in the Wind' Lady Gaga has adapted the lyrics of her breath of fresh air folk pop sensation 'Alejandro' to suit the sights and sounds of this bellweather seat. Lady Southey will be on slide guitar.
Ladies Gaga and Lady Southey in rehearsals, Bermagui

A sneak peak at the lyrics below:

Eden Monaro
"I know that we are young.
And I know you may love me.
But I just can't be with you like this anymore.
Eden Monaro.

Gillard's got both hands
in your pocket.
And she won't look at you,
Won't look at you

She hides true love
En su bolsillo.
She's got Mike Kelly 'round her finger.
Around you.

You know that I love you boy.
Hot like Mexico, rejoice.
At this point you gotta choose,
nothing to lose (other than the 2042 Winter Olympics for Mt Selwyn).

Go vote my name.
Go vote my name, Eden Monaro.
David Gazard's not your babe.
Mike Kelly's not your babe, Eden Monaro.

Don't wanna kiss, don't wanna touch.
Just smoke one cigarette and hush.
Go vote my name.
Go vote my name, Eden Monaro.

Eden Monaro.
Eden Monaro.
Eden-Mon-aro. [2x]

(Just stop. Please. Just let me go. Eden Monaro. Just let me go.)"

Thursday, August 12, 2010

Eden-Monaro Decides: Campaign Song

Dear Eden-Monarists,

I am pleased to announce the release of my official campaign song: “Everything I do, I do it for Eden-Monaro”. The song is performed by Vanessa Amorosi backed by the original Brumbies Choir and a group of prominent locals (including famous mother and daughter Big Brother contestants Krystal and Karen and racing car driver Mark Webber – Whose performance in a recent Canberra Milk add alerted me to his talents) and was co-written by myself, Bryan Adams and Kevin Costner. As you can see, the song powerfully blends a traditional love ballad with the three concepts dearest to my heart: Real Action, Moving Forward and Eden-Monaro.

The song will be available for purchase on a Limited Edition "Eden-Monaro Decides 2010" vinyl in all good retailers from this weekend. The B-Sides on the record are me performing acapella duets with Rolf Harris of traditional Eden-Monaro folksongs including "Bump me into Parliament", "Eugowra Rocks", "Murrumbidgee Shearer" and "Nine Miles from Gundagai".

Lyrics are below:

Look into my eyes - Eden-Monaro will see
What Eden-Monaro mean to me
Search Eden-Monaro heart - search Eden-Monaro soul
And when Eden-Monaro find me there Eden-Monaro'll search no more

Don't tell me it's not worth tryin' for
Eden-Monaro can't tell me it's not worth dyin' for
Eden-Monaro know it's moving Australia forward
Everything I do - I do it for Eden-Monaro

Look into Eden-Monaro heart - Eden-Monaro will find
There's nothin' there to hide
Take me as I am - take my life
I would give it all - I would sacrifice

Don't tell me it's not worth fightin' for
I can't help it - there's nothin' I want more
Ya know it's moving Australia forward
Everything I do - I do it for Eden-Monaro

There's no Real Action - like Eden-Monaro Real Action
And no other - could give more Real Action
There's nowhere - unless Eden-Monaro're there
All the time - all the way

Oh - Eden-Monaro can't tell me it's not worth tryin' for
I can't help it - there's nothin' I want more
I would fight for Eden-Monaro - I'd lie for Eden-Monaro
Walk the wire for Eden-Monaro - ya I'd die for Eden-Monaro

Ya know it's moving Australia forward
Everything I do - I do it for Eden-Monaro

Tuesday, August 10, 2010

Eden-Monaro Decides: Extract from Campaign Launch Address

Hello readership,

As many of you know, there is a good chance that, on behalf of the United Australia Party, I will take back the bellweather seat of Eden Monaro in the upcoming Federal election. Last night was an important step towards that goal – with a glittery and glamorous bang my campaign was officially launched at the Nelligen petrol station and broadcast live around the nation.

Many of you would already have heard the reportage of this momentous event on the wireless news services, so I will keep this posting brief. Set out below is an extract from my keynote address, highlighting a key policy of mine for this election ‘Real Action on recognising Queanbeyan as the beating political and economic heart of the nation’:

“…but enough now (for the time being) on the many, many similarities between sitting member for Eden Monaro Mike Kelly and Chairman Mao. It is probably now an appropriate time to point out the striking parallels between myself and the founding father of Eden-Monaro, the great Sir Austin Chapman. Like me, Sir Austin was born in the flamboyantly named hamlet of Bong Bong near Bowral and later became an accomplished saddler. It is a little known fact, and one that I do not widely publicise, that I regularly moonlight as the saddler for all Mohammed bin Rashid Al Maktoum’s racing operations and am highly regarded for my ornate yet surprisingly comfortable Jump Saddles. Obviously both Sir Austin and I are also both recipients of the KCMG.

While our views on the overall benefits of federation diverge, a powerful convergence of Sir Austin’s and my political viewpoints is our passionately shared belief that the national capital should be as near to the Molonglo River as possible – long considered the gateway to the empire. However, unlike Sir Austin, I have never accepted the choice of Canberra as the national capital but rather continue to believe that nearby Queanbeyan, the de facto capital of both Eden-Monaro and Australia in anyone’s language, should be accorded that honour more formally. Queanbeyan has, in my view, everything needed to be the national capital: access to the crucial trade routes of the Molonglo, Queanbeyan and Murrumbidgee Rivers, fantastic cultural institutions: such as the Royal Hotel and Riverside Plaza as well as any number of celebrity residents including David and Terrence Campese, Joe Janiak and my life-long friend and drama pupil George Lazenby.

It is against that background that tonight I announce the third prong in my Eden-Monaro election promise trident. The first two prongs of our election campaign you know well: they are our widely discussed policies of ‘Real Action on bringing the 2042 Winter Olympics to Mount Selwyn’ and ‘Real Action on restocking the dwindling population of that most elegant of piscatorial delicacies, European Carp, in the waters in and around Eden-Monaro’. The third prong of our campaign, and no doubt the clincher for the various fence-sitting ‘undecideds’ in this electorate and the rest of the nation is thus: to have Queanbeyan installed as Australia’s capital city by no later than November 2010. The United Australia Party represents real action on recognising Queanbeyan as the beating political and economic heart of the nation.”

Sunday, August 8, 2010

Eden Monaro decides: Prepare the FOI request

Day 3 of my campaign for Eden-Monaro and still no call from Kerry O'Brien.

This is no surprise to me, since the last time I clashed wits with Kerry, at the Kempsey Recreational Workers Club 1992 Great Debate (topic: That this house would repeal the Factory Laws) I stormed to victory with a polemic drawing inspiration from Conrad's "Heart of Darkness". The crowd's response to my rhetoric was to attempt to storm the stage to celebrate with me. Were it not for the Hells Angels we had organised as security for the night, I would have been swept aloft and carried by the cheering crowd into the main streets of Kempsey.

Kerry has never forgiven me for this.

Needless to say, I have already prepared yet another freedom of information request directed at the ABC. Eden-Monaro WILL have a voice this year.

Saturday, August 7, 2010

Eden-Monaro Decides: Worm beats Trout

Having destroyed the Big Trout on the first of our Eden-Monaro Work Place Relations debates (according to a rudimentary “Worm” which recorded the reactions of 6 enthusiastic locals to the contest) I retired to the shores of Lake Eucumbene to engage in a spot of fly fishing. Reflecting on my performance, it occurred to me that the Big Trout was, in many ways, like my old adversary Basil Marceaux. A worth adversary but an anachronism in this day and age of the 24 hour media cycle.

Basil's policy position

Ironically, the Big Trout shares some of Basil’s more controversial views on gun ownership and flag trim.

(The deeply conservative Big Trout)

Neverthelss, I salute both the Big Trout and Basil Marceaux. Ideological soldiers from a better time.

Eden-Monaro Decides: Campaign Update

As part of my campaign for the rustbelt seat of Eden-Monaro I will be broadcasting news from the electioneering coalface. Below is an extract from today’s Queanbeyan Tribune:

* * * * * * *
After our stories on sitting member Dr Mike Kelly (ALP), popular local traffic controller Frank Fragiacomo (Independent) and Ursula Bennett (Christian Democrat), we now turn to a non-resident celebrity candidate who is being parachuted into Eden-Monaro by the United Australia Party (which was hitherto considered disbanded since 1945) - Bullstrode Whitelocke K.C. a famous barrister and author.

QT: Mr Whitelocke, you’re regarded as a legend in the Australian Liberal Party for your service as a senator for the Northern Territory both in office and in opposition during the Menzies and Whitlam Governments, why then would you to run in a crucial bell-wether seat against a Liberal Party candidate?

BW: I had intended to run as an independent like my dear friend Kevin Rudd, but deep in the cockles of my heart, I have simply never recognised the dissolution of the United Australia Party and the formation of the Liberal Party. As such I had little choice but to run under the UAP banner. I know for a fact Stanley Bruce and Billy Hughes agree with my version of history and can now finally rest in peace. Secondly, it is routinely said that the party that wins Eden-Monaro will win government, that’s why the United Australia Party is putting forward its best candidate in this seat.

QT: So the United Australia Party has other candidates?

BW: Not at present but if we win government I imagine there will be a flight to quality.

QT: What do you say to local people who will argue a person who has never been to many parts of Eden-Monaro is poorly equipped to represent its people in parliament.

BW: Firstly I will rarely have to answer those questions as I do not and will not live in the electorate. Secondly there is no question I was a fine senator for the Northern Territory despite having never been further north in Australia than Palm Beach on Sydney’s outskirts. Thirdly, as a King’s Counsel, celebrated philosopher, twice nominated Spirit Man of the Nagoya Shrine and the current Chalker of the Cerne Abbass Giant, the profile and media attention I will bring to the electorate will be fantastic for local business and tourism (until of course, prospective tourists realise I live in Sydney). Think of the hype if I organised a game of field polo on Seifert Oval or delivered an impromptu recital of the Tenterfield Oration on the main street of Braidwood. This would be an incredible boon for the region.


Tuesday, August 3, 2010

Bullstrode's Legal French Phrasebook: Dépeçage

Dépeçage means dismemberment, which is in turn derived from the verb dépecer, which means to carve up or to analyse in extraordinary detail.

This term is principally used in two (2) ways in a legal context:

1) As a description for every single oral and written submission every put by T Bullstrode Whitelocke KC. For example ‘Mr Whitelocke, I am not sure that a fourth day of surrejoinder is necessary for this directions hearing. To be frank, your ferocious depecage of the defendant’s proposed timetable, whilst showing admirable stamina, has left me longing for my 7oth birthday.’; and

2) To described the common law concept whereby different provisions within a single contract are expressed to be governed by different laws. I have used Dépeçage in this way extensively in all my drafting and find it leads to greatly enhanced outcomes for my clients.

I pioneered this concept when I drafted the ISDA standard documentation, which now regularly sees the ISDA Master Agreement governed by New York State Law while the credit support annexe is governed by English law.

After the success of this innovation I now use Dépeçage in all contracts as follows:

i) I typically use Allgemeines bürgerliches Gesetzbuch to govern my recitals;

ii) I have been known to rely on Scots Law to govern the operative provisions, except, of course, for any clauses relating to the doctrine of marshalling, which I ensure are governed by the Napoleonic Civil Code, Delaware Law or Halakha;

iii) I will use non-legal laws, such as the law of diminishing returns or the Hicks-Marshall laws of derived demand, in sensitive or confidential contractual provisions (for example, in a particularly cheeky move I employed when negotiating Eddie Maguire’s employment contract with Channel Nine, I provided for various provisions to be governed by the laws of gravity); and

iv) for all boiler plate clauses (including governing law provisions), I will only apply Papuan Customary law.

I have also been known to hand annotate standard form contracts, including dry cleaning tickets and the large poster displaying the terms and conditions for entry to my local car parking station, to ensure that the consumer friendly laws of the Cayman Islands apply at all times.

As you can imagine, this is yet another of my legal innovations which has greatly enhanced and simplified contract law for businesses in Australia.

Friday, July 23, 2010

Cheerleading follows Pine-Baiting into the Dustbin

I have just got off the phone from my dear friend Judge Stefan Underhill who has recently delivered his opinion in the United States District Court, District of Connecticut matter Stephanie Biediger, Kayla Lawler, Erin Overdevest, Kristen Corinaldesi, and Logan Riker, individually and on behalf of all those similarly situated, and Robin Lamott Sparks, individually v. Quinnipiac University No. 3:09cv621 (SRU)*. I have given Stefan a ferocious haranguing but he is steadfastly refusing to change his manifestly flawed determination that Cheerleading is not a sport*.

In his opinion, Stefan said "Competitive cheer may, some time in the future, qualify as a sport under Title IX.......Today, however, the activity is still too underdeveloped and disorganized to be treated as offering genuine varsity athletic participation opportunities for students."

This criticism could equally be levelled against Ultimate Frisbee, Kabaddi or Australian Rules Football and is the type of short-sightedness that led to my preferred sport of pine-baiting being outlawed in Australia.

Pine-baiting became popular in New South Wales in the late 1830’s as a result of the difficulties for bear-baiting enthusiasts posed by Australia’s overwhelming lack of bears. Early European settlers experimented with baiting alternatives such as recidivist convicts and emus before realising that both Norfolk Island Pine and the rare Wollemi Pine provided wonderful sport.

Australia's most celebrated Pine-Baiter of the 1930s Norman "Splinters" Royan shows off his skills.

Pine-baiting was Australia’s most popular sport for the next 100 years until some meddling lefties in London challenged the validity of the practice in the UK High Court of Justice. Unfortunately, in the now infamous High Trees decision, Lord Denning put an end to Pine Baiting for many of the same reasons Judge Underhill has relied upon to derogate the gentle art of cheerleading. The one positive from this sorry episode was that in obiter in High Trees, Lord Denning accidentally invented the doctrine of Promissory Estoppel. Only time will tell if Judge Underhill’s decision in Volleyball v Cheerleading will have a similar impact on the future development of contract law.

*** Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130

Friday, July 16, 2010

How I Modernised Cricket

The incredible hype surrounding Australia’s Test Match against Pakistan at Lords this week (largely, I imagine, the result of the continued and rightful selection of prodigious run machine Marcus North) has reminded me of my own role in shaping the modern game of cricket.

While the actions of my old sparring partner Kerry Packer in establishing World Series Cricket to grab the television rights for his Nine Network at the expense of the Australian Broadcasting Corporation is the stuff of legend, my involvement in the game's tumult in the late 1970’s is not widely known.

Although it is a notorious fact that I am an authority on the game* many people do not realise that I acted for my close friends Allen Stanford and Ted Turner, who formed a rival consortium, Power Cricket America (PCA), which tried to sign the very same players to play in the “Pan-American Power Cricket League”. This would have given Turner’s CNN global rights to cricket and made me the most powerful man in the game, to the extent I wasn't already.

Unfortunately, Packer’s consortium, recognising the imminent threat of Turner, Stanford and myself, quickly signed almost every high profile international player of the day, including such luminaries as Tony Greig, Clive Lloyd, Greg and Ian Chappell. Packer’s masterstroke was using that dapper, silver-tongued devil Richie Benaud as a recruitment consultant and publicist. This was the beginning of my well publicised feud with Benaud. PCA, on my advice, engaged Steve Randell and Saleem Malik to fulfill a similar role. This ultimately proved a bad decision.

After months of effort and despite my enthusiastic negotiating style, Turner’s PCA consortium was ultimately only able to sign five players: English Journeyman Arnold Sidebottom, teenage Queensland Heartthrob Carl “Big Mocha” Rackemann, little known Sri Lankan tweaker Hettithanthrige Don Kapila Haritha Perera (who was a better player than his modest record of 3 first class matches for Burgher Recreation Club suggests) and two retired Major League Baseballers: relief pitcher Albert Walter "Sparky" Lyle and reliable second-baseman Bernie Allen.

Despite our limited playing stocks, Turner and Stanford would not be dissuaded and funded PCA matches in the USA for the entire 1977 season. The three-on-two matches, while not a commercial success were surprisingly engaging contests. The Rest of the World (Sidebottom, Rackemann and Perera) had an advantage in youthful enthusiasm and cricketing experience while the Americans (Lyle and Allen) were technically limited but absolutely ruthless on anything short (a lesson Mocha refused to learn after he was dispatched over mid-wicket by the powerful Bernie Allen time and time again). For the record, the Rest of the World won the only SuperTest by an innings and 11 runs while the USA won the 50 over series 11-8. Yorkshireman Sidebottom was player of the series and won a magical night with Michael Douglas.

While the role of Power Cricket America is now largely forgotten, many astute critics of the game believe it was the entrepreneurial flair and commercial dynamism I demonstrated in promoting PCA and recruiting a powerful roster that spurred Packer to make One Day Cricket such a powerful force in the game over the last 30 years. It is hard not to agree.

* Based largely on my childhood friendship with Sir Donald and my many critically acclaimed articles on the sport (such as “Age limits in the judiciary but not in cricket commentary: The case against Richard Benaud” C&SLJ 54 2001”)

Friday, July 9, 2010

Bullstrode's Latin Phrase Book: Minima Maxima Sunt

Minima Maxima Sunt: More or less means “The smallest things are the most important", essentially that one must pay attention to detail.

For example, my bitter enemies Julia Gillard and Stephen Smith have dealt me a terrible blow this week and were able to do so because of their attention to the most microscopic details of my past. While their announcement of the regional refugee processing centre appeared confusing and bizarre to the average man on the Bondi Tram, I immediately recognised it as a direct attack, and an effective one at that. Gillard (as an immigrant herself) and Smith know all to well that acting against self-represented, non-English speaking refugee applicants in the Refugee Review Tribunal represents the financial cornerstone of my practice. Similarly, they know from personal experience that my past history with tropical diseases such as Lymphatic filariasis, river blindness and snail fever and my acrimonious relationship with Xanana Gusmão make it very difficult for me to travel to my beloved Timor-Leste. This is brilliantly demonstrative of the policy effectiveness of Minima Maxima Sunt.

While infinitus est numerus stultorum in the Labor Party, this episode was well played. Julia and Stephen have won this battle through attention to detail, but the war is just starting. And in a time of war, the law falls silent*.

*Inter arma enim silent leges.
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