No 32 (Spring/Summer 2015-2016)

History reports itself

The idea that you don’t need proof of the obvious was for years known to lawyers as “judicial notice”. The phrase has gone now, replaced by section 144 of Australia’s Evidence Act 1995:

144 Matters of common knowledge

(1) Proof is not required about knowledge that is not reasonably open to question and is:

(a) common knowledge in the locality in which the proceeding is being held or generally, or

(b) capable of verification by reference to a document the authority of which cannot reasonably be questioned.

When I was young, Australians took judicial notice of the fact that Mt Kosciusko was our highest mountain. Now I am old, I wanted to check that it had become common knowledge. Just after Christmas Day, I, my wife & a legion of march flies claimed the summit.

I had in my mind an article about Thomas Jefferson’s good friend Kosciusko and Tommy Townshend Lord Sydney, the latter coming into and leaving the world a decade or so behind the Polish patriot. The hope was that Australia’s second highest mountain – although spelt ‘Townsend’ – has been named for him.

The orthodox history is tolerably well known. As I write, it is a daysshort of the 176th anniversary of Strzelecki’s ascent. Kosciusko’s peak has a plaque:

For those with the dignified restriction of middleaged eyesight, the important part is Paul Strzelecki’s observation upon his ascent in February 1840:

A ‘pinnacle, rocky and naked, predominant over several others’ was chosen by Strzelecki for a point of trigonometrical survey. ‘The particular configuration of this eminence’, he recorded, ‘struck me so forcibly by the similarity it bears to a tumulus elevated in Krakow over the tomb of the patriot Kosciusko, that, although in a foreign country, on a foreign ground, but amongst a free people, who appreciate freedom and its votaries, I could not refrain from giving it the name of Mount Kosicusko…

A pinnacle, rocky and naked, predominant over several others? Hmmm… Sounds a little like Mt Townshend to me, which is lower but nonetheless a harder climb. Something which is consistent with the proposition popular in climbing circles that the second seven summits of the continents are more difficult climbs, from K2 down to Mt Townsend.

I went to Google images.

Here’s Mt Townsend:

Here’s Mt Kosciusko:

And here’s the Cracow mound:

It’s a close call, but it seems to me that Strzelecki may have climbed – and named – the neighbour.

Enter the Australian Year Book for 1910. It says in its Orography section:



As indicated in the two preceding issues of this Year Book, it is intended each year to give fairly complete information concerning some special geographical element. In this issue an enumeration of the mountains of Australia is selected. Triangular measurements of heights are not available to any great degree, and the heights of mountains given in the following paragraphs must, therefore, in many cases be taken as approximate only. Thus, the height of Mount Kosciusko is given as "about 7300 feet." Various measurements of the peak originally called by that name showed it to be slightly lower than its neighbour, Mount Townsend, and the names were thereupon transposed by the New South Wales Lands Department, so that Mount Kosciusko still remains the highest peak of Australia, and Mount Townsend, given by the Geodetical Survey of Victoria as 7266 feet, ranks as second. Officially the height of Mount Kosciusko is now stated as 7328 feet.the following paragraphs must, therefore, in many cases be taken as approximate only. Thus, the height of Mount Kosciusko is given as "about 7300 feet." Various measurements of the peak originally called by that name showed it to be slightly lower than its neighbour, Mount Townsend, and the names were thereupon transposed by the New South Wales Lands Department, so that Mount Kosciusko still remains the highest peak of Australia, and Mount Townsend, given by the Geodetical Survey of Victoria as 7266 feet, ranks as second. Officially the height of Mount Kosciusko is now stated as 7328 feet.

I still do not know for whom Mt Townsend is named. More interesting for us is whether we should heed the call of convenience and take judicial notice of what everyone schoolchild knows. Or take time to consider the alternatives.

David Ash, Editor

The 2015 Forbes Lecture in Sydney

The 2015 Forbes Lecture was presented by Emeritus Professor David Barker on Wednesday 11 November 2015. The well-received topic was the History of Legal Education in Australia. For a detailed look at more recent times and for a delightful addition to the collection of collective nouns, see David Barker AM, An avalanche of law schools, 1989–2013.

Results of the 2015-2016 Australian Legal History Essay Competition

Results of the competition were posted on Australia Day 2016. Please click here to see them.

The Holt Prize

For those who want to know about Chris Holt’s contribution to law in Australia, please Justice Mark Leeming's obituary of Chris.

Federation Press has now established a legal book prize, an appropriate commemoration of Chris’s life. The first awards were presented in November in Sydney. AJ Brown, Professor of Public Policy & Law at Griffith University said:

Why name Australia’s richest legal book prize after Chris Holt?

Simple, really… because Chris Holt was Australia’s best legal publisher. And it’s not too much to add: Australia’s best legal publisher, ever. To an extent that it will be difficult for anyone to eclipse for that honour for a very long time.

The books of the joint winners of the first Holt Prize ever awarded – Giovanni Di Lieto from Monash Business School, and Scott Stephenson from Melbourne University School of Law – will be just the first of many more proofs of why.

Unless Chris Holt and his co-founders of The Federation Press, Kathryn Fitzhenry and Diane Young had taken the bold step in 1987 of establishing Australia’s own, independent, high quality publishing house for legal, social and academic books, there is no telling how much important scholarship may have never been published – either at all, or with the impact it has had.

Not because these works were any less in quality or significance than those published by other major, typically overseas-owned legal and academic presses. In fact, the reverse. Chris Holt was dedicated to publishing the best research, scholarship and analysis of the technical and political issues surrounding almost every area of law and legal policy important for modern Australia. He was equally dedicated to supporting the often previously-unpublished scholars who were producing this cutting edge work – like all entrants to the new Holt Prize.

While books also had to sell, he and his partners knew a smaller, independent publisher could apply its own tests, free of the need to deliver a particular profit margin to a parent institution or company on the other side of the world. As Tony Blackshield told the assembled crowd at the awarding of the first prize last Wednesday, it became the magic of The Federation Press to use the reasonably-selling textbook market to support publication of other, niche but vital, books on smaller print runs than most commercial publishers would ever contemplate.

These are all factors that enabled high quality publications on a myriad of vital legal and social subjects that otherwise may never have seen the light of day, or not for years after their topicality had morphed or faded. Migrant Labour Law: Unfolding Justice at Work in Free Markets, by Di Lieto and From Dialogue to Disagreement in Comparative Rights Constitutionalism, by Stephenson, continue in these fine traditions. Everyone who heard High Court Justice Stephen Gageler explain the judges’ choices will be watching the careers of Di Lieto and Stephenson very closely… along with the runners up, Yee-Fui Ng from RMIT and James Watson from the New South Wales Bar.

Chris Holt was also Australia’s best legal publisher for other reasons. His personal values of social justice and intellectual inquiry, and vision of the need for the law to adapt and for the relations between law, politics and society to be exposed and critiqued, flowed through into the hundreds of titles published under his watch.

What he contributed, not only by choosing those works but by helping many rising authors to craft and edit them for maximum impact – applying his own standards of intellectual integrity – was second to none.

My own experience of just how good Chris Holt really was came about when I was selecting who should publish my biography of Michael Kirby, a great Australian and the nation’s most famous modern judge (Michael Kirby: Paradoxes & Principles, The Federation Press, 2011; paperback 2013). Some books don’t have to struggle to attract publishers’ attention, and this was one. Indeed, I was wined and breakfasted by the commissioning editors of several of the big houses, in various cities.

But then I met Chris Holt, and two things happened. First, he did not want to simply get his hands on something that what would clearly sell well, even if mediocre. Better than anyone else I had talked with about the project, he grasped what it could and should be, from the outset. He wanted it to be a great book and laid out a challenge for how to make it one. Clearly, he had no confidence (yet) that I could do it. I liked that challenge.

Second, he had the nous to recognise that given the market, The Federation Press could afford to do a bigger print run on the first edition than the other publishers were proposing, and hence, could offer me a bigger advance … which I needed to help fund the research. So Chris Holt not only out-thought the competition – without even trying, since he was just being himself – he also outbid them on their own commercial terms. These are reasons why I know, personally, that he was the best. And that was before we even got started on the book … a process in which Chris Holt ended up being to me, what Katharine Graham of the Washington Post was to the Watergate journalists, Bob Woodward and Carl Bernstein. (Young people can google them up.) The rest is history, and at the award ceremonies for the Walkley Book Award, the National Biography Award and the Prime Minister’s Literary Awards, of which we made all the short-lists, there was no question in my mind that I’d chosen the best publisher.

At $12,000, the fact that The Federation Press has created the biennial Holt Prize as the richest legal book prize in Australia makes it an even more fitting tribute.

As The Federation Press continues to grow and expand its range beyond the law, into more areas of social and political history and inquiry, there is no doubt Chris Holt would – and should – be quietly proud of his legacy, in his own quirky and self-effacing way. Chris Holt not only changed the publishing landscape of Australia through the ideas, knowledge and debates that his publishing gave to legal and political discourse, he helped change Australia itself, and will continue to do so for many years to come – all for the better.

Judges were Justice Stephen Gageler, Neil Williams SC and Professor Andrew Lynch. The joint winners: Giovanni Di Lieto and Scott Stephenson – they received a cash prize of $6000 each and a publishing contract. The finalists were James Watson and Yee-Fui Ng – they received a publishing contract. From the Society, which is itself grateful to Chris for his work, thanks and congratulations.

L to R: Professor Andrew Lynch, Neil Williams SC, Giovanni Di Lieto,

Justice Stephen Gageler, Yee-Fui Ng, Scott Stephenson

(James Watson unable to attend)

The Civil Procedure legislation 10 years on

It’s not quite Magna Carta, but we have another anniversary this year, the tenth anniversary of the passage in NSW of the Civil Procedure Act. The Commonwealth and other States and Territories have passed cognate legislation, each focussing on a variant of “the overriding purpose”.

While the anniversary was noted in the last Flyer, it is worth recalling rule 57 of the 1826 Supreme Court Rules, introduced by Sir Francis Forbes:

The foregoing rules and orders, being made for the convenience of the parties in the ordinary course of a proceeding in the said Court, and with a view to promote economy and dispatch by avoiding all unnecessary and vexatious forms, in the spirit of such view and in furtherance thereof, the Court may, from time to time, dispense with any particular rule that may be attended with inconvenience or hardship to either of the parties, and may make such special orders in any particular case, or in any stage of the proceedings, as shall be within the powers of the Court and may facilitate the ends of justice.

A later Chief Justice Sir Alfred Stephen was perhaps of the plus ça change, plus c’est la même change school and not revealing any particular toryism when he said "... the so-called system of Chief Justice Forbes [was] really and in truth no system at all."

For those interested in degrees of separation, the person who coined the French expression was Jean-Baptiste Alphonse Karr; Alphonse Karr was one of the names mentioned in the advertisement for a legal history conference in France in 2015 to talk about the "Gazette des Tribunaux" – which newspaper he appears to have described as "an exhibition in effigy to fifteen thousand copies spread throughout France and abroad”; the advertisement was on the webpage of ESCLH, the European Society for Comparative Legal History; and the Forbes Society is duly listed as one of the associates of the society on the the ESCLH's homepage. As can be seen from the Gazette’s subtitle, it was more than either a law journal or a case reporter. It was very much a specialist newspaper focussing on crime and justice. It provided fodder for novelists of the day.

Constitution patriotism in Adelaide

On 17 & 18 September 2015, I was delighted to be one of the paper-givers at a conference at the University of Adelaide, “Constitutional Patriotism: Founding documents and the emotions from Magna Carta to the Declaration of Human Rights”. Professor David Lemmings & Emeritus Professor Wilf Prest organised the conference, thus making it squarely in William Blackstone territory! For abstracts and biographies of the speakers click here.

The Block and the land of coincidence

The Block in Sydney’s Redfern is part of Aboriginal Australia’s heritage. The Whitlam government facilitated its purchase by the Aboriginal community in 1973.

Recently, the Block was a focal point of litigation in the NSW Supreme Court.

An aside emerging in the hearing was that the Block was part of a Crown land grant of 52 acres [21 hectares] to an ex-convict called William Hutchinson in 1819. What makes the aside interesting is that Mr Hutchinson was later granted another 1,400 acres, the nearby Waterloo Estate, which in 1889 became the land in dispute in Cooper v Stuart, a high point in the articulation of doctrine we now know as terra nullius, the legal fiction exposed in the 1992 Mabo case. Almost adjoining pieces of land which together form part of an often volatile and always fascinating history.

New books

The Society will soon publish reviews of two important contributions, each published by Federation Press:

· John Hamilton, Adjudication on the Gold Fields in New South Wales and Victoria in the 19th Century, 2015, Federation Press.

· Neil Preston, Military Law in Colonial Australia, 2016, Federation Press.

Summer Quarters[footnoteRef:1] [1: Usually, the Flyer draws the references from timelines.ws or from en.wikipedia.org.]

In 1815

On 20 November, the treaties known collectively as the 2nd Peace of Paris were concluded, Austria’s Klemens von Metternich helping to create a “Concert of Europe”.

In 1865

On 6 November, the Confederate ship Shenandoah under Captain James Waddell surrendered in Liverpool, England, after attacking Yankee commercial shipping off the coast of Alaska. It had sunk of captured 38 vessels, mostly New Bedford whaleships. The surrender of the Shenandoah was the last act of the US Civil War.

In 1915

On 21 September, Anthony Comstock, proponent of the 1873 US Comstock Law, an  Act for the "Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use", dies.

In 1965

On 28 October Pope Paul VI issued a decree, Nostra Aetate, absolving Jews of collective guilt for the crucifixion of Jesus Christ.