Keeping the Olympic spirit alive

The 2000 Olympics in Sydney were a big thing for the Sydney Korean community. For the first time, the two Koreas, whilst still at war, were to take part together as a single team under a neutral “Korean peninsula” flag. Funds were raised and efforts mounted to provide the visiting athletes with local support worthy of this occasion.

Mr Cha was a leading figure in the Korean and more specifically the Korean sporting community. He became chairman of the support committee.

After the games were over, accusations were made concerning Mr Cha’s management of the committee’s funds. A so-called audit (not actually by auditors) was undertaken and its results, highly critical of Mr Cha, were published in practically every local Korean newspaper (there are a number of these).

Mr Cha sued for defamation. He commenced the proceedings in June 2002. Judge Judith Gibson handed down her judgment this month (December 2009), and also published a number of interlocutory judgments. She found for the plaintiff and awarded a total of $240,000 damages against the various defendants. There will also be interest (generally this is from the date of publication), which is a matter still to be argued about. However both of these amounts are likely to be dwarfed by the costs of the hearings, which stretched out over years and a total of 82 days, so far. Here are some extracts from two of the judgments. They are lengthy (though not in comparison to, in particular, the principal judgment). I’ve offered the minimum of commentary. For litigation tragics (and I only expect litigation tragics to get through them) I hope they speak for themselves.

From Cha v Oh (No. 21) [2009] NSWDC 130, in which Gibson DCJ refused leave to the plaintiff’s solicitor to file a notice of ceasing to act. It was intimated that Mr Evatt, counsel for the plaintiff, might also withdraw from the case.

25. This brings me to the question of counsel. While courts may have an inherent jurisdiction to supervise the conduct of counsel (for example, the ability to intervene to have counsel removed: Kallinicos v Hunt (2005) 64 NSWLR 561; [2005] NSWSC 1181 at [45]), I do not have the same degree of control over Mr Evatt as I do over the solicitors on the record. I can only appeal to his better nature not to leave a junior member of the Bar, especially one to whom he is related, in circumstances which may expose her to any kind of unnecessary stress, complaint or other kinds of action. Ms Evans deserves better, in my view.

From Cha v Oh (No. 22) (Part 1) [2009] NSWDC 299

The first defendant – Mr Jik Il Oh

[55] The first defendant, Mr Oh, was the president of the Korean Journalists Association in Australia, according to a letter from the Association dated 30 September 2000 (Exhibit 56). He wrote the first, third, sixth, seventh, eighth, eleventh, twelfth and fourteenth matters complained of which went before the s 7A jury, which appeared in “Hojudonga”, a Korean language newspaper. His article of 22 December 2000 (the first matter complained of) summarises the interim audit results provided to the Australian Korean Journalists Association by the fourth and fifth defendants on 21 December. Mr Park, the fourth defendant, disputes this, and says that Mr Oh came to his desk and stole documents from him (Daily Transcript 2638, 30 March 2009, Day 59). The “interim audit results” Mr Oh wrote about were not produced at the trial, nor were they provided to the plaintiff or the cross-defendant in response to their requests at the time (Daily Transcript 1767, 30 May 2008, Day 45); Mr Park says this report was mislaid (Daily Transcript 2793-2795, 1 April 2009, Day 61).

[56] Mr Oh never contested these proceedings. After the s 7A jury found imputations were conveyed by each of these publications (a schedule is set out in Part 2 of this judgment), he failed to comply with peremptory orders to file a defence. Judgment was entered against him. He died after judgment was entered. Defamation actions do not survive death, so the action abates. This is an important exception to the general rule of survivorship of actions, and is one of the reasons why delay in defamation actions should be regarded with concern by the courts.

(d) Adjournments of this case

[103] The District Court roster requires accurate estimates of time from the parties before setting down all civil and criminal trials in this court. The Court of Appeal’s finding that these proceedings were adjourned in June 2007 so that the plaintiff could read some documents (Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13 at [51]) is incorrect. The hearing time allocated for this trial was four weeks, but after this four-week period, the case had to be adjourned part-heard because the plaintiff’s cross-examination had still not concluded and the court calendar and lawyers’ commitments meant the hearing could not continue. I made orders for further particularisation of the defence of justification as this defence had clearly not been adequately particularised.

[104] Prior to the first adjournment, the parties gave the court an estimate of another four weeks to finish the matter. After four further weeks, the plaintiff’s cross-examination was still not completed. The hearing was adjourned to January 2008. In the final week of this second period of hearing time, an application was brought for me to disqualify myself. That judgment was appealed: Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13. The January 2008 hearing had to be vacated pending the Court of Appeal’s decision, and the hearing could not resume until May 2008. This being the third time the trial was part-heard, I asked the parties to give an estimate of the hearing time in writing.

[105] For the third time, the hearing could not be completed in the time estimated by the parties. This time the parties had no further hearing dates available until 2009.

[106] Each time the case was adjourned, there were problems with document management and changes to the court roster. Managing this case has been a strain on court resources and staff, as the transcript will demonstrate.

(iv) Delays in the provision of written submissions

[111] All parties are responsible for this. It has taken the parties eight months (15 April to 6 November 2009) to provide submissions.

(f) Trial management issues

[112] Neither Mr Wheelhouse SC nor Mr Evatt can use a computer. As the trial transcript grew longer and the adjournments more numerous, finding references in the paper transcript became, for them, a lengthy process. Disputes, usually on Browne v Dunn issues, arose.

[113] For the 2009 section of the trial, I installed computer screens on the bar table. This had limited success because, as Mr Wheelhouse SC explained, he was “the Prince of Luddites” and could only use the paper transcript (Daily Transcript 1711-1712, 29 May 2008, Day 44; Daily Transcript 2319, 23 March 2009, Day 55). Mr Evatt was no better (Daily Transcript 2243, 23 March 2009, Day 55; Daily Transcript 2559, 26 March 2009, Day 58; Daily Transcript 2669 and 2679-2680, 31 March 2009, Day 60).

[114] There were complaints on both sides about delay in the case, particularly concerning the length of the plaintiff’s cross-examination. Mr Wheelhouse SC said that any delay in the cross-examination was because the plaintiff “never answered any questions, ever” (Daily Transcript 862, 8 October 2007, Day 23). In response to inquiries about the length of the cross-examination, he said that interruptions by Mr Evatt and myself meant he was only able to ask the plaintiff “ten questions a day” (Daily Transcript 1221-1222, 16 October 2007, Day 28).

[116] At the end of the plaintiff’s long cross-examination, there were only a few days of the trial remaining in 2007, and Mr Evatt was anxious to call witnesses who had been waiting since May (notably the plaintiff’s accountant) to give evidence. The fourth defendant then told the court he wanted to cross-examine for five days, which meant the plaintiff could call no more witnesses. The fourth defendant had refused requests by both Mr Wheelhouse SC and myself to sit at the bar table for the duration of the case (Daily Transcript 123, 6 June 2007, Day 6; Daily Transcript 847, 5 October 2007, Day 22; Daily Transcript 1025, 10 October 2007, Day 25). Mr Wheelhouse SC had previously told me he would ask questions on the fourth defendant’s behalf (Daily Transcript 371, 14 June 2007, Day 11) and on occasions took objections on the fourth defendant’s behalf (Daily Transcript 67, 68 and 71, 4 June 2007, Day 4).

[117] In the course of dealing with this application, which I granted, I commented that the fourth defendant had refused to sit at the bar table as counsel as I had several times requested and had sat at the back of the court laughing, and that his defence needed to be amended as he had only pleaded a defence of justification to two imputations. I did, however, allow the fourth defendant to amend his defence and to cross-examine the plaintiff, which he did for the rest of the time allotted for the trial.

[118] The second and fourth defendant made an application for me to disqualify myself on the basis of both actual and apprehended bias for these remarks I made about the fourth defendant. I refused to do so.

[119] The matter was adjourned to the following year (29 January 2008), with the plaintiff still technically under cross-examination, as the fourth defendant clearly needed to consider his position concerning issues of malice and qualified privilege, which he had not dealt with, and with the plaintiff having been unable to call any of his witnesses.

[120] A Holding Summons was filed in the Court of Appeal, and an application for leave to appeal from my refusal to disqualify myself was brought in November 2007. This meant the hearing had to be adjourned. On 8 December 2007, at the request of the parties, I vacated the hearing date of 29 January 2008 and placed these proceedings in the Inactive List, pending the decision of the Court of Appeal. The Court of Appeal dismissed the appeal: Jae Kyung Lee v Bob Chae-Sang Cha & Ors [2008] NSWCA 13. The hearing was given a fresh trial date commencing on 5 May 2008.

[121] When the hearing started, I was told the plaintiff was in financial difficulties and that his former lawyers were seeking to enforce judgments on legal costs in the Bankruptcy Court. His new lawyers sought a number of adjournments. Some evidence from reputation witnesses was taken. The seventh defendant’s cross-examination was commenced but had to be adjourned part-heard to March 2009 when an exhibit was found to be missing.

[133] The Civil Procedure Act is still something of a lex imperfecta, in that failure to comply is rarely penalised. The burden on court resources, as well as on parties, caused by repeatedly part-heard trials and prolix pleadings is significant. Judges in the District Court are not given secretarial assistance or time out of court to write judgments, even lengthy ones, and all judgments must be handed down within two months of judgment being reserved. While I can understand the reasons for this regime, having regard to the need for justice to be just, cheap and quick, it is difficult to achieve without assistance from computer-literate counsel who have considered the law, distilled the facts and issues and presented them in a clear and concise fashion in properly pleaded and particularised claims and defences.

[from a section dealing with various mistakes which parties made]

[679] There were similar problems during the trial. One of the lawyers in this litigation took an exhibit from the exhibits desk in the court without notifying the court or returning it, with the result that the seventh defendant’s cross-examination had to be adjourned for six months. On another occasion earlier in the litigation, a solicitor who no longer acts for the plaintiff left the plaintiff’s box of cheque butts in Court 21A after the hearing was adjourned. Arguments broke out between the parties as to what had happened to them. Fortunately a court attendant located the relevant documents in a box under a chair, where they had escaped the attention of other persons attending official court functions and hearings between October 2007 and March 2008. Mistakes, errors and carelessness occur in long trials.

[Concerning the conduct and length of the trial]

[1107] As the plaintiff had clearly been cross-examined about matters that were not in the particulars, I ordered the second defendant to provide further particulars. These were in excess of 140 pages in length and when the matter resumed on 24 September, Mr Evatt brought an application to strike out the defence of justification on the basis that the particulars were so prolix and incomprehensible that they amount to an abuse (Daily Transcript 476, 24 September 2007, Day 17). My judgment on that application is set out in [2009] NSWDC 300. With the benefit of hindsight, my decision was clearly wrong.

[From a section of the judgment dealing with whether the defendants had acted reasonably in making the accusation that expenditure on a trip was not justified because there were no supporting documents for the expenses and no evidence that the trip actually related to the affairs of the committee, but incidentally providing a rather colourful example of the manner in which the proceedings were conducted]

[1452] The plaintiff in evidence said that the four persons who signed the receipt would not have done so if there had not been documents attached. He also referred to the staple mark. While he was being cross-examined the following occurred:

“Q. Mr Cha, do you agree that if you fail to provide to the auditors any evidence to support the expenditure of $8,470 on a trip to Korea between 15 February and 21 March, it would be reasonable for the auditors to suspect that that claim was not a truthful claim.

EVATT: I object to that, your Honour.

HER HONOUR: Well, Mr Evatt, can I just hand you – why is this volume of material on my desk labelled, records in relation to Mr Cha’s official trip to–

EVATT: Exactly.

HER HONOUR: Well, it shouldn’t be–

EVATT: I mean, this is ridiculous.

HER HONOUR: Well, it shouldn’t be on my bench. Can I hand it down, Mr Evatt. This looks like a document of yours. It’s a bundle of original documents including, I might add, a receipt.

EVATT: I mean, he gave Mr Park and all the others the full details of it. He’d better have a look at it, your Honour. My friend knows it’s all false.

HER HONOUR: I don’t know what it’s doing on my table. Somebody put that on my table.

WHEELHOUSE: I’ve no idea what it is, your Honour. It’s certainly not a document I ever–

HER HONOUR: Well, you’re welcome to look at it.

EVATT: Yes, well, give it to Mr–

WHEELHOUSE: Can I have my question answered?

EVATT: No. Look, it’s a disgrace.

HER HONOUR: But Mr Evatt has objected. But the thing is this, that there is a bundle of documents there. Can I suggest–

WHEELHOUSE: Could I have a look at it, then, your Honour.

HER HONOUR: Yes. Well, Mr Evatt, you show them to Mr Wheelhouse.

EVATT: Yes, all right.

WHEELHOUSE: While that’s happening–

HER HONOUR: It’s because what troubles me is that it looks like there’s a statement from a witness of yours at the back who – about how it was an official trip.

EVATT: That’s their witness, your Honour. They’ve hidden these documents from us.

HER HONOUR: Somebody Choi. I’m not very good on names.

EVATT: This has sneaked out by mistake.

HER HONOUR: Well, somebody has put it on my bench by mistake.

EVATT: They know full well there’s proper records of this.

HER HONOUR: You can deal with that in reply, Mr Evatt.

EVATT: That’s a matter I wanted to speak to you on about that.

WHEELHOUSE: These are not our documents, your Honour. They’re from my friend’s brief.

EVATT: Not from my brief.

HER HONOUR: How did it end up on my bench?

WHEELHOUSE: I’ve no idea, your Honour. They’re not documents I’ve had anything to do with.

HER HONOUR: Well, I can tell you now that that’s not the only document that I’ve had up here. I’ve had all those telephone records up here as well. I handed them back yesterday.”

[1453] After the documents were handed down by me, the cross-examination continued:

“Q. Mr Cha, I put to you that when you provided the expenditure resolutions to Mr Park and Mr Lee on 10 December 2000, you provided no documents to support the claim of $8,470.70 for your trip to Korea from 15 February until 21 March 2000.

EVATT: How can my friend ask that when he’s got the documents in his hands?

WHEELHOUSE: Your Honour, I do find this interruption–

EVATT: Well, your Honour, I think it’s in fairness.

HER HONOUR: Thank you, Mr Evatt. That’s enough. Yes, Mr Wheelhouse, just ask that question again.

WHEELHOUSE

Q. My document says evidence required.
A. I did. There are two staple holes. I must say they were attached with staples, and now there’s a blank paper. I’d like to know why there’s – this thing is out.

Q. I put to you, Mr Cha, that when you supplied the documents to Mr Park on 10 December, there were no documents to support the claim of $8,470 for presents,
A. That’s not true, it’s not possible. There’d be about four signatures on this resolution and why would have they signed that resolution if it was not right?

Q. For whom did you buy presents in Korea?
A. For example, I’ve given gifts to the Minister of Culture Promotion Department and Mr Kang Dae Wan, who was a member of Parliament who was also a member of the Veterans Association and Ms Chuk Jai Lee. She is from Korean Women’s University in Seoul. She looks after the Olympic acrobatics.

Q. What is the document that you have to prove that?
A. Because of those people that I just mentioned they gave $100,000 of donation that was from SK Securities.

Q. They’re the SK Securities people you bought presents for?
A. No, I didn’t know about SK Securities at the time.

Q. Is this additional expenditure on SK Securities?
A. What happened is the Koreans in Sydney, they were rather poor to give donations of large amounts. So I used my money and gave money to the committee as donations, and I didn’t have enough money, so eventually I went to Korea to ask for donations from people in Korean.

Q. I put to you that ,in the absence of supporting documentation, the trip to Korea was for private business purposes and not for the committee.

EVATT: I object to that, it’s two questions in one.

HER HONOUR: I’ll allow it.

WHEELHOUSE

A. No, it’s not, not at all.” (Daily Transcript 1047-1048, 10 October 2007, Day 25)

[1454] Whether these documents were in fact the travel documents is unknown, as after they were given to Mr Wheelhouse SC by me, they were never heard of again. Both parties throughout the trial were careless with documents. I have only set out this transcript extract in full to indicate the kind of problems that occur in lengthy trials run in a disorganized fashion and because the plaintiff’s answers about this issue need to be read in context.

No proof of circulation or extent of publication

[1719] The defendants’ submissions assert:

(a) There is no proof of circulation for any Korean language newspapers.

This is factually incorrect; the second defendant gave evidence that the circulation was about the same for each newspaper: Daily Transcript 2083 (12 June 2008, Day 51).

Concluding remarks

[1851] In Marsden the matter was remitted for a retrial on damages, with the Court of Appeal recommending (Amalgamated Television Services Pty Ltd v Marsden (No 2) (2003) 57 NSWLR 338; [2003] NSWCA 186 at [46]) that the trial judge for the assessment, either by the trial judge who had heard these very lengthy proceedings or another judge, depending on the listing problems in the court. It is likely a similar application would be made in this case if there is to be a retrial on damages.

[1852] If appellate courts are of the view that my findings on quantum should be set aside, I respectfully invite them to consider the desirability of substituting their own findings on damages rather than remitting the matter to myself or (as the Court of Appeal suggested in Marsden) to another judge of this court. This was the course taken by the Full Court of the Supreme Court of South Australia in Cornwall & Ors v Rowan [2004] SASC 384 at [825], where damages were reduced in relation to one of the imputations which the Full Court found was not conveyed. Many of the witnesses who gave evidence for the plaintiff were elderly and were having difficulty recalling the evidence when they were called, and their memory is unlikely to be better if there is a retrial in 2011 or 2012. Finality in litigation is an important issue for the parties and their witnesses, and probably also for members of the Korean community, such as the members of the Supporting Committee who worked so hard for the 2000 Sydney Olympics to be a success. With great respect to the appellate courts, a fresh trial could add years, as well as costs, to this trial, as would have been the case in Marsden.

[1853] Part way through this trial, the plaintiff’s counsel’s request that I strike out the defendants’ particulars and defence of truth (see Cha v Oh (No. 10 & No. 11) (District Court of NSW, Gibson DCJ, 4 October 2007, unreported) in Cha v Oh (No. 22) (Part 2) [2009] NSWDC 300). I dismissed that application and the resultant fairness of this trial will be a matter of concern for appellate courts, as I noted in my judgment at (Cha v Oh (No. 10 & No. 11) (District Court of NSW, 4 October 2007, unreported) at [69]). McClellan CJ at CL in Greig v WIN TV took from the jury a defence of justification which was adequately particularised before the trial but did not meet the evidentiary burden. The defence of justification in these proceedings, on my analysis of the evidence, similarly does not reach that standard of proof, and the circumstances in which it was provided late, and in vast quantities, led to procedural unfairness. My refusal to strike out the defence of justification in my decision of 4 October 2007 was wrong.

[1854] As McClellan CJ at CL pointed out in his 4 November 2009 seminar paper on defamation law to members of the legal profession (“Eloquence and Reason – are juries appropriate for defamation trials?”) the “erosion of faith” in the common law adversary system that so concerned Sir Anthony Mason in 1999 is of particular concern in defamation trials because of the complexities of the law. This is particularly the case where the provision of vast quantities of material during the trial, coupled with pre-trial delays (however caused) also occur.

[1855] The events in this case occurred between 1998 and 2001. Proceedings were commenced on 20 June 2002 and have taken until 12 November 2009 to complete. I am handing down my judgment as quickly as I can, as the interests of justice will not be served by more delay. These proceedings, like the Marsden litigation, demonstrate that delay can render any judicial determination pyrrhic, not simply for the parties, but for the common law system..

Adamson v Ede – the saga continues

I have commented on this legal saga in the past (also a passing reference here).

One thing which keeps the saga going is the enthusiasm and capacity of Mr Adamson, who is a solicitor, to keep prosecuting his claims and, in particular, contesting any adverse judgments by taking them on appeal.

Recently the Court of Appeal has handed down two judgments on two such appeals. They are Adamson v Ede [2009] NSWCA 379 and Adamson v Ede [2009] NSWCA 403.

The first of these rescues for posterity a matter which I was actually present in court for. Adamson was representing his company (in that case, acting as a solicitor) as well as acting for himself in person. The defendant was seeking to make a relatively last minute amendment of his defence at the commencement of the trial. The relevant question was therefore whether the amendment should be allowed or whether it was too prejudicial to Mr Adamson as a plaintiff at this stage in the proceedings. Mr Adamson could have attempted an argument about this, but he took a more tricky, rules-based approach. He claimed that he had not been served with the proposed amended defence. I remember this quite distinctly because he kept on harping on the question of whether he had been served (which is a conclusion of law) and ducking the question of whether it had in fact been provided to him. It turned out ultimately that he considered he had not been served the amended defence because at the time he received it (a good month earlier) the solicitor from whom it came had not yet served on him a “Notice of change of solicitor” which would have indicated that it was the solicitor on the record for the defendant in the proceedings.

It’s the sort of point an auto-litigant might take but not one which is calculated to impress a judge, especially if made by a solicitor, and especially as Mr Bilinsky, Mr Ede’s new solicitor, had previously appeared opposite Mr Adamson at an interlocutory hearing. It’s not as if he was unaware that, formalities aside, Mr Bilinsky was acting for Mr Ede.

Here’s the bit of the Court of Appeal judgment which sets out some of the relevant transcript:

122 The first day of the hearing was on 26 November 2007. Early that day, Mr Sirtes applied to amend the defence and to file an affidavit of Mr Ede dated 24 October 2007. Mr Adamson opposed that application. A draft of that defence and a copy of that affidavit had been given to Mr Adamson by someone from Mr Bilinsky’s office, on 25 October 2007. Mr Adamson strenuously submitted to the judge that he had not been served with those documents, because he had not been served with any document saying that Mr Bilinsky had become the solicitor on the record for Mr Ede. Mr Adamson’s contention to the judge was that, when he received those documents on the 25th, he handed them to an assistant, saying: “Hold the document until I receive notice of a change of solicitor”. An affidavit of service from Mr Bilinsky’s assistant was read deposing that on the 25th “I met with Mr Adamson and I gave him the documents”. The following exchange eventuated:

ADAMSON: That is a different matter from me reading the documents. They came to me a day after they were supposed to and from a firm which I didn’t recognise as the solicitor on the record. Why should I have looked at the document until today? I didn’t even know they were the solicitor on the record until today.
HIS HONOUR: There is no merit in anything you have said so far. I propose to allow the document to be filed. Firstly, notice of those was given and, on the evidence, served on 25 October, which is more than a month before the hearing commenced.
Secondly, the matters alleged are basically legal matters, not factual matters.
ADAMSON: I am not admitting service.
HIS HONOUR: You don’t have to admit service.”

123 Mr Adamson continued to protest that he had not been served. The transcript continues:

“HIS HONOUR: You have had that affidavit, haven’t you?
ADAMSON: I haven’t read any documents.
HIS HONOUR: I said you have had it, have you not?
ADAMSON: I haven’t been served with it. I don’t propose to give any evidence over the bar table.
HIS HONOUR: Mr Adamson, I am asking you, have you had it?
ADAMSON: Are you ordering me to reply?
HIS HONOUR: Yes.
ADAMSON: You are ordering me to reply whether I have had it?
HIS HONOUR: Yes, you are a solicitor.
ADAMSON: Had what?
HIS HONOUR: The affidavit of 24 October.
ADAMSON: It was handed to me and I handed it to Mr Maskell, my associate. I have not read the affidavit.
HIS HONOUR: That is your problem.”

124 A little later, Mr Adamson said of the proposed amended defence:

“ADAMSON: … This is completely different from what was served on the 25th. There was a document there, although I didn’t read the document I know it was not in this form.
HIS HONOUR: You can’t say that, you say you haven’t looked at it.
ADAMSON: I said I glanced at it. I said I could see what it was and I answered your question. Is it alleged this is the same document that was supposedly served on the 25th?
HIS HONOUR: I thought so.
ADAMSON: I don’t think it is. Can the other side be asked that?
HIS HONOUR: I am just going to ask them.”

125 Confirmation was given that the proposed amended defence was identical with the one that had been delivered (to use a neutral word) on 25 October.

It’s that bit where Adamson asked the judge whether he was ordering him to reply which I particularly like. It hardly seems the right way to start out before a judge who will be trying your case.

The Court of Appeal held that Justice Windeyer was entitled to take into account on the question of Mr Adamson’ credit as a witness his “conduct at the commencement of the trial in endeavouring to say that he had not been served with documents because they did not come from the solicitor on the record.”

Both appeals were dismissed.

You’re obese, you’re 70, and you’re a barrister!

Overheard from the corridor on my way to my room today.

Not, I think a direct declaration, but rather a recounting or more likely foreshadowing of a supposed killer point in cross examination. What obvious risk amongst many is the hapless chap (almost certainly a chap) charged with knowing?

The sadder thing is that, providing I’m otherwise spared, it’s not difficult to foresee such a future for myself.

It’s all a bit dispiriting, not to say an exhausting prospect.

Kanen Breen wears a dress

Again

in Pinchgut’s latest production of Cavalli’s L’Ormindo, which I went to tonight.

The style of the opera takes a little getting used to. At first, the twists and turns of the plot limit the opportunities for building up any particularly sustained affect or mood, other than a tendency to rather cheerful triple time. It’s a comedy, after all.

In the third act, as the various plot lines reach their respective resolutions, there is more of an opportunity for some longer musical paragraphs, which comes as a bit of a relief. And of course denouements are the more affecting moments. Or maybe I was just getting used to the style by then.

The house didn’t seem to me to be as full as Pinchgut might have hoped: they sold most of the good seats but should probably have lowered the price on the cheap ones, at least for the first night on a Wednesday.

Every year when I hear the orchestra at Pinchgut I remind myself of what early music bands in Sydney used to sound like. There’s a generation and more of tuition and development of skills now and you can really feel it.

This is really just a provisional comment: were I a twitterer I would probably tweet. As hinted above, Kanen is a tremendous scene stealer. I was a bit surprised to read that Trevor Pichanek (Amida) has been in the AO chorus since 2007 because he didn’t really seem comfortable on stage. It was something to do with not wanting to let his elbows leave the side of the body, so that we had arm gestures from the elbows only. He’s meant to be a military hero but I can’t say he came across as one. Amongst the support characters, Anna Fraser made a particularly strong impression.

Someone tweeted earlier that those baroque plots are often easier to follow on the stage than they are on the page, and I certainly found that to be the case.

There are performances on Saturday, Sunday (early evening/late afternoon) and Monday. I’ll probably say more after I see it again on the last night.

We can never see ourselves as others see us

David Russell, as I have written before, was for many years director of music at St Mary’s Cathedral.

He was unjustly dismissed by the church, then reinstated after bringing proceedings to vindicate himself in the NSW Industrial Commission. The commission, however, does not have the power to award any costs. If he had lost in the commission, that would have protected him, but when he won, it didn’t help him. After that, he brought proceedings in the Supreme Court to recover his costs and other expenses incurred as a result of the church’s breach of its contract with him. The court found that the church had breached its contract, but that he couldn’t be awarded his costs in the commission or the other damages he claimed. He appealed to the Court of Appeal but was unsuccessful.

I have written about these cases on this blog (1), (2). There is one unflattering thing I said about him in the first of these posts (I won’t repeat it here, but it started with mentioning that when younger I thought he was fat), but actually I thought I made it clear that he had been hard done by by the courts and that the church was treating him shabbily.

Since then, David Russell has left his position as Director of Music. He has published a memoir, Surplice to Requirements. I bought a copy for $35 from Gleebooks, where it was recently launched by Fr Edmund Campion.

There is a lot in the book which is of interest. The first part treats Russell’s (Catholic) youth and early involvement in church music and music education in Sydney. He confesses to what is a probably an offence under the Copyright Act (reverse engineering – from the piano score and listening to recordings – of the non-available orchestral parts for Oliver! when he was music teacher at Enmore Boys High in 1969), but I doubt if he is going to be prosecuted for that. There is maybe a bit too much detail for the general reader about his overseas tours with the cathedral choir, ending with a tour to Europe just before the outbreak of the first Gulf War in 1991. Then, at page 203, the narrative jumps forward to 1999 and his arrest by officers from the child protection squad concerning allegations connected to David O’Grady which, so far as they related to events which concerned Russell, were ultimately found by the Industrial Commission not simply to be not proven, but actually not to have occurred.

This section of the book (roughly the last third) is obviously the prime reason for its publication. Russell wants to set the record straight. It has basically three parts.

First is the initial call from the police and criminal charges (brought on the flimsiest of evidence against him; dismissed with costs), after which all seemed over and he returned to directing the choir. A couple of years later, under pressure from the relevant government authorities to set its child abuse risk protection in order, the church launched its own investigation (of a sort) and dismissed him. This is the second part, leading to the the Industrial Commission hearing. These parts are the probably the best in the book, at least for me reading as a lawyer. Of course these are the bits which have a happy ending, or at least a great victory, for Russell.

The third part deals with the aftermath: the unsuccessful court cases (dealt with rather generally) and the pressures and intrigues (his word: there were undeniably manoeuvres) which ultimately led to Russell leaving his position at the cathedral.

During this last period, Russell kept working at the cathedral, preparing in particular for the visit of the pope in 2008 – which must have been a wonderful moment for him. Shortly after this, there was a further complaint or complaints that Russell had dealt over-harshly with a boy who misbehaved in a rehearsal. Russell was suspended again. He wasn’t told who had made the complaint, though there are dark hints. After Russell left the job he received a letter stating that the last complaints [sic] had been found to not merit any disciplinary action against him.

Russell’s account of the denouement is rather cryptic [not a pun]. He says “for legal reasons, I cannot recount the straw that eventually broke this camel’s back.” I take that to mean there has been some kind of legal settlement with the usual confidentiality clauses – after all, Russell was liable for the costs of the court proceedings and so vulnerable to pressure on that account, at least to the extent that he had any assets left by this time. This doesn’t stop him having a swipe at some of the people who he thinks have acted dishonourably in the course of this endgame.

Russell seems to have obtained legal advice that he should be careful about naming people, so there is a lot of stuff where names aren’t mentioned, though it should be reasonably clear to anyone with a little familiarity with the facts who he is talking about. As he writes, in a final section entitled “Coda”

When I started writing these thoughts and recollections I had no idea where they would take me. The only certainty I had was a need to have my ‘view from the peak’ in some way validated.

As he correctly points out, “Like flypaper sticking to your fingers, this whole affair refuses to go away.” He then refers to an SMH story (about O’Grady being struck off as a nurse) which he felt was unfair to him, especially because it was on the net. I agree that story was unfair, because it referred to the claims made about Mr Russell but merely said that he was reinstated when the Industrial Commission found no evidence to support the claim. That was understating the strength of the commission’s finding in Mr Russell’s favour.

And then (p 292):

Apart from the Herald site, which is disseminated internationally, there were other Blogs, which had an extraordinary amount of private detail about the various activities I had pursued in my life. The Operas in which I had appeared, as well as the lighter works by Offenbach and Sullivan. And I sang in some excellent pieces from the American stage. There was an attempt to disparage me by quoting the paucity of the cathedral salary that I was prepared to accept. Perhaps the writers of this diatribe would be shocked to know that at the commencement of my term I was paid nothing at all.

The language had quite a degree of pomposity about it, a type of low cast legalese bordering on the ‘camp.’

I think he was talking about me there. You can click the links above and see why.

I mentioned his salary ($25,000) to show Mr Russell’s fight to clear his name and get his job back was not about money but about vindication and of course, his life’s work. If that salary reflected poorly on anyone, it was on the church for paying him so little. In my observation, churches are quite often terrible employers. You are meant to be doing it all for God and if they don’t like you or don’t want you, then they are doing what they do for God too.

I didn’t think either post was a diatribe.

It just goes to show that you can never see yourself as others see you.

Sydney Omega Ensemble

On Sunday afternoon to a concert by the Sydney Omega Ensemble at the Conservatorium.

I was invited to go by a friend who has taken it upon himself to assist with the management of the group. I was a bit embarrassed when he actually paid for my ticket in front of me – if I was going to go, I wouldn’t really have grudged the admission price – but hell, a free ticket was the deal and when you’ve been a lawyer for a while you get rather a hard heart for sticking to the deal, whatever it is.

The program was:

MATTHEW HINDSON New work for solo Bassett Clarinet (Funeral Windows was the title, I think: it was a kind of riff on the Dies Irae)
SMETANA String Quartet From my life
WEBER Clarinet Quintet

The ensemble’s web site states:

Eleven young, vibrant performers with a wealth of enthusiasm and musical skill, together formed the Sydney Omega Ensemble at the end of 2005.

Only three of that eleven featured in Sunday’s concert, the remaining two (violinists making up the string quartet) were “guest artists,” and therein lies a bit of a problem.

If you go to the ensemble’s website you’ll see that its basic programming principle is that you can have anything you want, so long as it has a clarinet in it [that's an allusion to Henry Ford, in case you didn't notice]. This is because the ensemble’s “artistic director” and (it is fair to assume) instigator is its clarinetist, David Rowden.

The founding members of the ensemble in 2005 were all young musicians on the cusp of a professional career. Since then, some of them have gained salaried toeholds in the musical establishment; others haven’t. The appearance of “guest” violinists on this program (not a one-off appearance: they were “guests” at the ensemble’s previous concert) is a result of the original violinists being otherwise engaged.

Obviously, people are going to move on, and the membership of a group cannot remain static. Even with a stable membership, it must be a nightmare getting everyone together, not only for the performances, but also for rehearsals. I was told that there had been three rehearsals for this concert: that wasn’t really enough for the Smetana – our expectations about string quartets are based on ensembles that play together for a sustained period to develop the necessary rapport and, in the case of touring quartets, repeat the same program many times. In the case of the Weber quintet (a terrific work: I’ve been humming the catchy minuet ever since), this didn’t matter so much, as David Rowden was able to provide the focus as clarinetist in what is essentially a brilliant concertante role.

I want to hear chamber music live. The possibility of this, however, depends on ensembles being able to maintain their existence and, in particular, sufficient other people coming together to help support them. That’s an issue for all musicians (audience = money = sustainable existence) and it’s a kind of Darwinian struggle which is hardly unique to the Sydney Omega Ensemble, which must have been disappointed and probably discouraged by the pathetically small audience that turned up on this occasion. It’s also an issue for those, like me, who want musicians to keep playing and practising and rehearsing and performing so we can hear what they have to play.

The horrible fact is that music, like art (I was thinking of visual arts but the argument holds more generally than that), or sport (considered as performance), is an enormous Ponzi or pyramid scheme of tuition and youthful aspiration and endeavour where only a minority will ever be left playing or working in the field. In each case, there is something which people actually love to do, but in order to be able to do it well they need to attract the support of others, and the regard of others is essential to any performative aspect. The availability of recorded music in the twentieth century has brought a wider range of music to everybody, but at the same time it has almost certainly reduced the prospects of musicians in general by concentrating the opportunities on those at the top of the tree whose performances can then be mass-distributed. Live performances need some institutional focus (venue/ensemble or performers/promoter) which will generate actual attendances in the face of this abundance and ubiquity of recorded product.

How this happens and how audiences can be built and maintained is very much a case-by-case thing. Just as it is an achievement for anyone to make their living from music, even more it is an achievement for an audience to be developed. Even established institutions, like Opera Australia or the SSO, can never rest on their laurels. (Artistic management is like the Red Queen’s race in Alice: you have to run just to keep still. Not that this is so different from life in general – I’m lapsing into truisms here.)

Everyone always has plenty of suggestions as to how audiences can be built up and maintained in a particular case. I have my own ideas about the SOE, but I don’t think it would be fair for me to offer commentary from the sideline [yuck! sporting metaphor!] here. They do play well. If they can manage it, there is room for their continued existence, particularly in offering performances by mixed ensembles of works which otherwise only get occasional exposure. They have plans for next year which they can’t announce officially until everything is teed up with the venue. They’re not giving up yet, and I say: good on them.

Just in case the gloomy circularity of spiralling truisms in this post gets you down as much as it is getting me down, I just want to make clear that I enjoyed the concert (that includes the Smetana) and it would have been well worth the asked-for $35 if I hadn’t been given a free (to me) ticket.

SSO – “Russian Magic”

Or Electrickery?

Last night to the last in the SSO’s Prokofiev festival.

For the orchestra, this festival really started when they went on tour with the Prokofiev 5th Symphony in the middle of October, so, amongst other things, they were drawing to the end of a continuous period of 5-6 weeks playing Prokofiev with their Principal Conductor, Vladimir Ashkenazy.

There was also a festive atmosphere abroad generally down at Bennelong Point: outside in the forecourt, Australian Idol was rehearsing its Sunday final with a pretend audience drifting in and out of the front of house toilets and bars; across Farm Cove in the Botanic Gardens a light show swept the tree tops for some party or other; the humid night tossed and teased with drops of never-quite-rain; all five auditoriums [-a?] had something on. Inside, the concert hall was comfortably packed.

Billed as “magic,” the title might more accurately have been “Fantasie” in the Schumannesque sense. It was truly illuminating to set the 5th concerto against the Lieutenant Kije suite: this placed what is otherwise a structurally rather puzzling work (the concerto: the suite is straightforward) in context. I even thought I detected reminiscences/portents (sans saxophone but with high bassoon) of a Kije-esque theme.

Perhaps after a torrid week or so leading up to a 4-day trial, I had just been so bereft of music that any music heard on Friday night would have worked enchantment. Be that as it may, the rewards of the sustained encounter between orchestra, conductor and composer seemed palpable. There was a unanimity of playing and, even more, of style. I had been too laid low with my brought-back-from-China cold [did I mention I have just been to Shanghai for 2 weeeks?] to get a fair impression of Alexander Gavrylyuk’s playing of the first concerto a fortnight earlier, but this time he scored a triumph. To play 1, 3 and 5 within such a short period is no mean achievement. Gavrylyuk grinned with exhilaration (or so it seemed to me: he must have been quite charged up) at the end as he rushed on and off the stage to take his bows before treating us to an end-of-term encore by way of a transcription (well a bit more than a transcription: I presume Liszt-Horowitz) of Mendelssohn’s wedding march. You wouldn’t want a whole program of pieces like that, but in the circumstances it went down a treat.

From minute or so before the end of the first movement of the concerto until about half a minute into the second movement of the concerto, we were also treated to a little bit of electronic buzzing coming through the PA. This is always disappointing: can’t the people on the switches keep their hands still? Perhaps they were fiddling around getting ready for the second half, where John Bell gave us an introduction to “The Ugly Duckling” before Jacqueline Porter took over for the quasi-cantata proper. That wasn’t entirely free in my mind from a suspicion of further electronic enhancement, and it seemed to me that in ‘Peter and the Wolf,’ with which the program finished, the technical fellows allowed themselves the luxury of a little orchestral amplification to match the narration with the orchestral sound. I’m less than keen on this sort of thing, though it didn’t seem to worry anyone else. Perhaps I was imagining it: but in P&W the orchestra seemed just implausibly loud given its modest scale and there was a boomy bloom to the sound which went beyond the concert hall’s usual echo.

So: a brilliant first half and a more mixed (in more than one sense) though still well-played second half.

Sometimes, when one is asked to compare people, the more tactful and even truthful answer is to simply say that they are different from each other. To hearken back to an earlier post, I think I still prefer Shostakovich to Prokofiev – but that is me rather than them. In fact, and unsurprisingly really, they are different.

This headline’s about you

When I started this blog I waded with fervour into all sorts of topics du jour, including whatever barrow might being pushed on the day by, say, Miranda Devine. Remember, it was the Howard era, and we were “not happy.” (Not that, when it comes to refugees and asylum seekers, I’m much happier now, but I’m beginning to direct my discontent to a wider range of my fellow Australians.)

Since then, I’ve generally lapsed into an aestheticist quietism. My urges to express my indignation about some facets of the law and to expose some other more quirky ones have both subsided. I’ve left the press alone – everyone can read the paper, after all.

But I can’t resist drawing attention to this rather neat headline in the SMH just now:

Kevin, you’re so vain: Turnbull

Postscript:

Just in case the allusion is lost on some of my younger readers [if any], the allusion is to a song by Carly Simon, reputedly about her ex-husband, James Taylor (though the truly tragic Wikipedia link I have given allows that it may alternatively have been Mick Jagger). Just while we’re on this topic, I’ve long thought that the accusation in the song that someone thinks the song is about them contains its own elements of vanity, as well as being a strange kind of having cake and eating it too.

Tintin or Asterix?

According to an article I read a few years ago, you’re either for one or the other, and certain other choices line up with that. I’m a Tintin man myself, though I don’t think the rest of the hypothesis holds very well. For one thing, if you prefer Tintin, you’re supposed to be neat and tidy.

After my third concert in the SSO Prokofiev series (plus the preview at Shanghai – did I tell you I’ve recently been there?), I’m beginning to wonder if I’m a Shostakovich man myself. For me, Prokofiev’s piano sonatas are more interesting than quite a lot of his more public, symphonic music, at least going on what I heard tonight.

I might manage a more considered view later.

High Technology

Today, for the first time, I used one of those new automated checkouts – it was at Coles on the corner of King and George Streets in the city: the resort of the desperate when heading home rather late and in search of a prepared meal. I felt a bit bad about doing the checkout staff out of a job, and I’m sure that there isn’t any saving passed on to me. There were special attendants hanging around to tell me what to do, and when I mentioned my bad feeling, one of them claimed that staff weren’t to be had. That is always rubbish.

Last Friday, re-entering Australia from Shanghai (sorry to be a bore about this but I don’t get out of the country that often) I used my new e-chipped passport for the first time. You have to stare at the camera which checks that your physiognomy matches that when your photo was taken for the passport. I suppose I am throwing immigration officers out of work but strangely or not, I don’t feel so bad about that. Actually, they probably aren’t out of work yet, but just mounting more elaborate defences of Fortress Australia. Should I be grateful?

There was some saving of time, at least while the new mode of passport is in a minority, but it was all for naught by the time we had waited for the luggage to be unloaded.