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
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