The Whitelocke "Parri Passu" defence back in business

The brouhaha over the Argentine sovereign debt litigation reminded me of some of my own finest work in front of the US 2nd Circuit Court of Appeals

Everyone at the Mosman Rower’s Club is talking about the Argentine Republic’s wildly entertaining court battle with its creditors. Argentina’s plucky attorney Jonathan Blackman Esq. delved into the T.B Whitelocke playbook and boldly submitted to the Court that his beloved Argentina would not voluntarily obey any order to pay the defaulted bondholders whenever it makes payments on restructured debt. Naturally the independently minded and flamboyantly passionate people of Argentina would consider this a violation of their sovereignty. To do otherwise would be to spit on the memory of Hugo Porta and the Libertador, José de San Martin.

In response to Mr Blackman’s argument (based largely on first principles of public international law and some obscure provisions of Andean Community of Nations’ Cartagena Agreement of 26 May 1969), U.S. Circuit Judge Reena Raggi asked:

“So the answer is you will not obey any order but the one you propose?”

Showing vision and nimble footwork worthy of any of the great Argentinean trequartistas, the ever-plucky Mr Blackman responded in emphatic terms “We would not voluntarily obey such an order.”

We all knew that was coming!

My dear friends Hernan Lorenzino, Argentina’s minister of economy, and Vice President Amado Boudou were, at the time, seated next to Blackman on the leather panelled counsel table as he addressed the bench and, knowing them as I do, they would have been rolling in the aisles.

I should mention that I have regularly enjoyed a Parilla, a glass or two of Malbec and an after dinner tango with Blackman, Lorenzino and Boudou as well as my other core Argentinean consigliore Sergio “Kun” Aguero, Gabriella Sabatini, Pope Francis I and firebrand former international rugby player Federico Mendez. Referring to ourselves as ‘Los Amigos para Siempre” we have been nigh on inseparable since an infamous and nationally televised celebrity capybara hunt organised by a charity sponsored by Sabatini in the early nineties.

Back to the hearing and Blackman went on to claim that a lower-court order obliging Argentina to pay the defaulted bonds whenever it makes payments on restructured debt would not only violate Argentina’s sovereignty but would threaten to trigger a new financial crisis and would quadruple the number of similar cases in New York federal court. It would, in short, clog up the entire US legal system with Argentinean Bond cases. Given the main purpose of the US court system is to create fodder for Law & Order episodes, Blackman submitted forcefully that this would make for fairly dry fare and could have dire ratings consequences for NBC.

Signing off in style, Blackman remarked “We’re representing a government and governments will not be told to do things that fundamentally violate their principles.”

Now we all know that this sovereignty mumbu jumbo is just a smokescreen to deflect the Court’s attention from the main issue. What is really at play is the uncertain meaning of the obscure ‘pari passu’ clause in the context of sovereign debt contracts.

The court has been alive to this problem since I pioneered both the use of the parri passu clause and then the strident criticism of its inherent ambiguities in an eerily similar dispute many years ago. That was, of course, when I was acting for the good people of the Chincha Islands (a humble archipelago close to the Peruvian town of Pisco – the home of the eponymous aphrodisiac) in their infamous Guano Bonds litigation.

It is a matter of public record that, in the earlier 1980s, the Chincha Islands issued millions of dollars worth of bearer bonds to retail investors in the South West United States backed only by its local guano deposits. When the first of the holders, a humble share cropper from New Mexico called Reynold if I recall, attempted to redeem his tranche of bonds (with a face value of no more than $1,000), the Chincha Islands promptly defaulted as the previously abundant supply of guano had, as it turned out, been thoroughly exhausted some forty years previous.

Instructed and summoned across the Pacific Ocean with all haste by the military junta that controlled the Chinchas at the time, I was able to resist against enforcement of an implied sovereign guarantee by arguing both limbs of the defence now in use by Blackman. In short, my argument was as follows:

1. the parri passu clause in any Chincha law document had to be read in light of the practice of skull binding that was widespread within the Paracas culture that thrived in the region around 300 BC; and
2. to require the Chincha government to pay the face value of the bonds would be the worst attack on Chincha sovereignty since Isabel II seized the islands in 1864.

Needless to say that the US 2nd Circuit Court of Appeals was wowed by my argument and though, ultimately unsuccessful, I received private congratulations from a slim majority of the Bench for my ingenuity and the quality craftsmanship of the paper mache skulls I tendered to demonstrate the long term implications of skull binding. My two-headed (though unbound) defence strategy is still taught in all law schools in South America (no doubt Blackman topped his class in this subject!).

We now wait to see whether the law has developed enough in the intervening years for the inherent rightness of this defence to be recognised by the Court. Mr Blackman will have my eternal thanks if he is able to put to bed the wrongs of the past. For the record the good people of the Chincha’s took the loss in the Guano Bonds matter in their stride and pressed on with appeal after appeal; the final outcome of which is still bogged down in the US legal system though it is said to be the subject of an upcoming episode of SVU.

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!

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.

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.

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.

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.

Bullstrode's Latin Phrase Book: Res Ipsa Loquitur

Res Ipsa Loquitur: This glorious phrase means "the thing itself speaks". In fact, Res Ipsa Loquitur was the original working title for my screen play that ultimately became the moving picture comedy smash “Look Who’s Talking”.

The first reference to this phrase can be found in Cicero's wonderful speech “Pro Milone”, while its use in jurisprudence can be traced back to Baron Pollock’s wildly controversial 1863 judgement Byrne v Boadle.

Unfortunately, the phrase is generally bastardised these days to mean: "the thing speaks for itself." In both recognising and subtly drawing attention to the manifest wrongness of this colloquial usage, I brilliantly used Res Ipsa Loquitur in Whitelocke: On Lawmanship 3rd Edition (it was redacted in the first two editions) when describing a highly successful ruse I use with my good friend Geoffrey Rush to impress spinsters:

[Transcript from a conversation in club in Perth]

Rush: (Loudly) Excuse me, sir, aren’t you that famous barrister who once bested Sir Garfield Barwick in a university debate, not to mention being largely responsible for the extinction of the Eastern Spotted Quoll?

Whitelocke: “Well, sir, I am a wealthy, famous and unmarried barrister and, yes, if I could be so forthright, I did give both old Gary and those pesky quolls such a flogging that each thought themselves to be a prudish cabin boy on the First Fleet.

* * * * * *

The recognition that this ruse afforded me would have been res ipsa loquitur in Sydney or in London, but in the provinces it served me to good effect.

Bullstrode's Latin phrase book: habeas corpus

Literally meaning '[You shall] have the body', habeas corpus is a fundamental English common law writ, which protects a citizen against arbitrary or unlawful detention by requiring the authorities to bring detained persons before the court and establish the lawfulness of their detention. An example:

'Mr Whitelocke, I do not understand your submission. As I have previously indicated, Hawkeye is not a legal entity and it is not possible to serve a writ of habeas corpus on it.'

Unfortunately my brush with Hawkeye and the Woodies in the fateful summer of 1997 was not my only occasion to invoke the 'great writ'*.


Hawkeye, once again whistling its macabre siren call.

* For a full discussion about the frankly bizarre limits to the defences to a charge of hunting on private land under section 28J of the Summary Offences Act, see 'When is a dog wild? Semantics again triumph the spirit of the law' TB Whitelocke KC 24 AltCrimJ 7 - 125.

Bullstrode's Latin phrase book: Volenti non fit injuria

Volenti non fit injuria. Pronounced "Volenti [pause] non [pause] fit [pause] injuria"

This handy phrase means "to a willing person, no injury is done". It is a full defence in tort law, one that I have called upon on many, many occasions.

Example of usage: "Sir Garfield Barwick might not have challenged Bullstrode Whitelocke to so many debates if he was better acquainted with the maxim volenti non fit injuria"