Ask Bullstrode: How do I prepare for the apocalypse?

On the urging of the good people of Wollongong and Shell Harbour, I have re-enlivened 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 problem that you simply cannot resolve, like that of young Archibald set out below, please do not hesitate to write me at Level 8, Albert Bathurst Piddington Chambers, 177 Phillip Street Sydney 2000, or at bullstrodewhitelocke@hotmail.com

Dear Bullstrode,

My name is Archie Clifford and I am a graduate lawyer in private practice in Melbourne. Like many of my friends I am concerned about the impending apocalypse. As a man who was heavily involved in most of the major conflicts of the last century, how would you suggest I best prepare myself?

Best regards,

Archie



* * * * *



Dear Archie,

Thank you for your note and kind words.

I am on the public record as having long foretold the end of the world. I was first alerted to the Mayan apocalypse by perhaps the world’s leading authority on the source, Maya Angelou. Over a warm chai tea in the balmy surrounds French Guyana in the late 60’s Maya told me to rethink the way I had interpreted the writings of one of my intellectual heroes, William à Beckett, and once I did, my whole world view changed.

While known more broadly as the first Chief Justice of Victoria, à Beckett was also a knight bachelor and a doomsday prophet and "prepper" of incredible vision. His works, under the nom du plum 'Colonus', such as “The Siege of Dumbarton Castle”, the “Literary News” and most vividly, his magnificent treatise “Does the Discovery of Gold in Victoria Viewed in Relation to its Moral and Social Effects as Hitherto Developed Deserve to be Considered a National Blessing or a National Curse?” were, on further investigation, riddled with opaque references to the apocalypse, Mayan gold and the Robbie Deans’ forthcoming reign of terror as Wallaby coach that had somehow escaped my notice on a superficial reading.

Appreciating the subtext, it became clear why his writings were considered so frightening they were said to have sparked the Eureka uprising and caused Damien Martyn to spontaneously retire from test cricket. I have been warning of, and preparing for, the end of days ever since.

I must confess though, until now I did have just the tiniest slither of doubt, because part of me thought we had dodged the apocalypse bullet when John Howard rolled Paul Keating as Prime Minister. However, having seen a news program last night called “the Walking Dead” I now know with certainty that the apocalypse, as foretold by Colonus, has already struck America and is sweeping towards us as I write.

As such gentle Archie, you are sensible to ask me what to do, because time is most certainly of the essence. Obviously you will already have constructed a bunker, that goes without saying, but as far as provisioning goes, I would suggest the following:

a) obtain as many semi-automatic machine guns as you can get your hands on (obviously this will be easier for those who live near a naval base);

b) grab as many of your neighbours' dogs and cats as you can get your hands on. Such urban livestock will prove invaluable as food supplies dwindle; and

c) beg, borrow or steal at least 100 copies of Whitelocke: On Lawmanship. This book is both an invaluable road map for apocalyptic survival and likely to be the official currency in the future wasteland that was Australia. As with the one-eyed man in the land of the blind, the owner of many of my obscure legal texts will be king in the land where they are as good as a stack of cold, hard cash. If all copies have already been looted, my other works such as ‘Mary Sidney Herbert: A Winsome Spinster’, ‘The Separation of Canon and Common Law: Eight (8) Centuries of Legal Madness’ and ‘From Chaloner Chute to Sir Loveban Lislebone Long: A History of 16th and 17th Century Lawmen with Riotous Names’ will be of equivalent value.

Special Christmas Invitation to Treat: A free legal opinion with every copy of On Lawmanship sold and $10 to charity‏

Dearly beloved,

Christmas is a time to reflect upon the good health of family, friends and the application of the doctrine of laches to those who arrive late to the eating of the Christmas pudding.

2012 has been an interesting year, I have had many great victories, and many narrow defeats, but such is the hurly burly of a life in the law.

My triumphs have included:
a) Leading Rwanda to a seat on the UN Security Council. Many, many nights of hard drinking with Boutros Boutros-Ghali, Peter Hargitay, Don Cheadle and Zsa Zsa Gabor eventually paying rich dividends;
b) Using all my powers of persuasion through days of fire-side whispering, gentle cajoling, neuro-linguistic programming and dark journeys into the hypnopompic states of consciousness to allow Steve Hooker to overcome the yips and soar back into medal contention at the Golden League High Jump meet in Lausanne;
c) Applying my training as a cartographer and my profound knowledge of the Pacific (developed during my youth on Pitcairn island) to hide Sandy/Sable Island from Google Maps thereby laying the foundations for a prime location for a piratical lair or an offshore processing centre for refugees; and
d) Finally freeing the micro-fauna of the Galapagos from the scourge formerly known as'Lonesome George'. A poacher's worst nightmare, this pesky tortoise had eluded me for nigh on a decade before I discovered his love for the moving siren songs of the popular chanteuse 'Skrillex'.

My defeats, though few, continue to sting:
a) Narrowly missing out on the job as CEO of the National Rugby League due to my controversial belief in the existence of potentially up to 14 limbs in Masters v Cameron;
b) Advising one of my blue chip clients, EB Private Equity, on their ill-fated tilt at storied retailer David Jones; and
c) Narrowly missing out to Stephen Gageler on elevation to the High Court because of my inability to identify Cameron Smith, Wendell Sailor or Jonathan Thurston when quizzed on the topic by Dyson Heydon.

Special Invitation to Treat

In keeping with the spirit of season, I am prepared to extend an incredibly generous invitation to treat to my learned readership. For the month of December, with every copy of Whitelocke: On Lawmanship purchased in Australia*, I will throw in, for no further consideration, a hand written opinion on any topic vexing the purchaser. If you provide me with a précis of the facts in question (no longer than 150 characters) I will opine definitively and without qualification and such opinion will be able to be used as compelling evidence in any commercial dispute and will, in my view, be binding on lower level courts and administrative tribunals in almost all Commonwealth jurisdictions.

Donation to Charity

In a final gesture of Christmas inspired bounteousness, I will give $10 from every Book & Opinion package sold in Australia* in the lead up to Christmas to the Sydney Story Factory, a not-for-profit creative writing centre for young people in Redfern, Sydney. A truly worthy cause, made particularly timely by Russel Crowe’s impending departure from “the Burrow” and the consequential requirement for a plucky local to pick up the pen and take carriage of the Book of Feuds going forward. You can read more about the Sydney Story Factory at http://bit.ly/PC3y4o.

Merry Christmas,

Your Obt. Svt.,

Bullstrode Whitelocke

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.

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.

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

Catering

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

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.

Ten Years of CLERP: A Retrospective: Part 1

Over the next 18 to 24 months I plan to release a ten part retrospective on the first decade of CLERP. The last ten years have seen incredible changes to the social, economic and jurisprudential fabric of Australia, all of which can be more or less attributed to the all-pervading influence of CLERP.

For the younger members of my readership, CLERP was and is a programme of amendments made by the Corporate Law Economic Reform Program Act 1999 to the Corporations Law in Australia. These changes focused on many areas of corporate regulation, including accounting standards, fundraising and takeovers. CLERP attempted to improve productivity, promote market freedom and increase investor protection. It is fair to say that, while demonstrating a fanatical, almost French, obsession with the codification of law, CLERP has achieved both none and all of these goals.

It is widely known that I was responsible for almost all the significant reforms achieved by CLERP. Like the great Theban King Laius and fictional scientist Miles Bennett Dyson*, I fear that, having created my brilliant offspring (CLERP), it will ultimately lead to my tragic downfall. For example, I inserted a requirement in the Corporations Act 2001 that a majority shareholder seeking to enforce compulsory acquisition must provide a report from an expert opining on the fairness of the offer price. This amendment dovetailed neatly with my newly established expert takeover share price assessment business but the subsequent success of which saw me spiral into erratic behaviour and a chronic dependence on colonic irrigation. I was quite unprepared for the trappings of overnight wealth and fame.

With that background now forever in your mind, we move to the year 2000, the first of CLERP. In analysing that crucial year, it is important to remember that while drafting CLERP in 1999 I was deeply influenced by my privileged childhood in the Great Depression, the decade long stagflation in the Eastern Bloc throughout the 1980s and my short but profoundly influential dalliance with Raelian theology. Recognisant of those influences, it is abundantly clear that the most significant CLERP related events in the year 2000 were:

a) Australia introduces the Goods and Services Tax (GST). This was a terrible result of Peter Costello’s incredible overreaction to the CLERP requirement that the legislature, rather than the AASC, should now make determinations regarding which types of entities should comply with accounting standards;

b) Labor won the August 12 1990 Isaacs By-Election. This was despite the fact that I had amended the entire of Division 9 (Evidentiary use of certain material) of the Australian Securities and Investments Commission Act 1989 to, when read backwards, repeat the line “Ann Corcoran is the Great Satan”; and

c) Even more influentially, the Brisbane Broncos won the NRL grand final. Unlikely hero Harvey Howard later confided to me that the confidence that CLERP had given him, as a retail investor, allowed him to focus on delivering a match winning performance from the interchange bench.

So, gentle reader, there ends the first instalment of the Twilight saga of Australian corporate law reform. Stay tuned for more of the CLERP retrospective. In future editions you will discover incredible facts such as CLERP’s unlikely connection to the grounding of the Pasha Bulker and how simplified company lodgement and compliance procedures led to the 2005 chart success of Shannon Noll’s “Lift”.


*Incredibly, not only do I believe the character Miles Bennett Dyson in the tech-reality drama Terminator 2 was based on me, the script of the fourth instalment of that highly popular moving picture franchise was almost entirely faithful to the wording of my first draft of the fourth edition of CLERP: “CLERP Salvation”.

Lesson of the Day

At a recent dinner with my lifelong friends Alby Mangels and real-tennis superstar Michael Chang, I was complemented on the vigour with which I attack any argument. I took this praise very seriously, as both these deeply respected and profoundly multicultural gentlemen are known the world over for unwavering commitment to their respective causes.

Upon further reflection, I came to the landing that my friends were indeed correct. Part of the reason for my enduring success is that I am never afraid to give even the haughtiest of opponents both barrels of the Bullstrode blunderbuss!

My magnificent argumentative ferocity is widely praised and has not gone unnoticed by the judiciary. For example, Mason P in FPM Constructions Pty Limited & v Australian Recreation Systems Pty Ltd & Anor [2004] NSWCA 318 remarked, with approval, that when faced with a trademark Whitelocke onslaught, my learned opponent had to resort to interacting “with studied courtesy and significant forbearance in all of the circumstances, notwithstanding a barrage of peremptory, patronising and downright offensive correspondence from the older practitioner”.

So friend, remember that if you aspire to be a great advocate, to do it properly you must leave nothing in the tank. No-one likes shandy.*



*Unless of course, it is only breakfast time. Nevertheless, the lesson stands.