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Some peculiar properties of glass

August 13, 2019

On Friday night a couple of weeks back and with D the following Saturday to  Carriageworks to see Sydney Chamber Opera’s production of the new chamber opera, Oscar & Lucinda, based on Peter Carey’s novel. Tthe music is by Elliott Gyger and the libretto by Pierce Wilcox.  They collaborated a few years ago on an adaptation of David Malouf’s Fly away Peter, which I didn’t see.

That makes two new Australian operas seen within a fortnight of each other.  You certainly can’t say that happens often.

In comparison to Kats-Chernin’s, a member of the Dulwich Hill gang who’d been to Whiteley earlier that week described Gyger’s style as “academically approved.”

If so, not by Associate Professor Jeanell Carrigan of the Conservatorium, who didn’t think much of the music at all.

In an opera adaption surely the most important feature is the music and how well adapted to the story it is….[I]n the opinion of this reviewer, the music did not react to or reflect the action on stage or in the story.

Had one not had the visual aspect and the text ….displayed on surtitles, hearing the music would not have given the listener the effect of what was transpiring….

Gyger writes in the program notes:

The guiding metaphor for the music is one not found in the novel …In a kaleidoscope, small fragments of coloured glass fall into arbitrary relationships which are then mirrored geometrically to create the illusion of order. Different settings of the kaleidoscope generate particular harmonic colours

If this was the guiding principle behind the composition then Gyger was successful, as the music does sound like a kaleidoscope, pieces of coloured glass falling into space. However, it seemed to this listener that the music never changed to reflect the story presented.

In the love scene, the kaleidoscope of colours did not reflect a warmth normally associated with such a scene. In the death scene, which was rather protracted, the colours were again so much of the sameness of other parts of the action. What began as colourful and very exciting became uninteresting and no longer captivating.


it was doubtful whether the music portrayed enough of the story line to warrant putting this story into an operatic medium.

That’s harsh.

On first listening, I had something like Carrigan’s reaction, though not as adverse.

A particular bugbear of mine with much contemporary music is that often intricate details, which can themselves be quite rhythmic (in this case, often coming from the words), are laid out against a basically time-measuring background seemingly devoid of  metre.  Where is the ritornello rhythmic pattern that we can (metaphorically) tap our feet to?  Where are the non-duple metres?

That’s probably also a stalking horse (switching metaphors in mid-stream) for regret at the absence of the straightforwardly lyrical.  Give us a song, not mere declamation!

Actually that’s an argument which goes back beyond antagonism to contemporary music.  People made that complaint about Wagner’s vocal writing, and I felt something a bit like that in relation to the constant (and ever so admired by critics as responsive to the text) recits and ariosos in The Return of Ulysses.

There is a bit of a lyricism deficit in Oscar and Lucinda – or at least there is lots of very angular and leapy music.

When I returned on Saturday – better rested than I had been on Friday and with the advantage of already having heard the music once – I found much more variety – even metrical variety – in the music than I had noticed first time around.

As for the two scenes Carrigan picked on: as to the first, her complaint should possibly be with the libretto rather than the music. It is an “in love” scene rather than a “love scene” – the whole point is that they are happy together without having declared their love to each other.  I thought the music captured this well, though perhaps you could have wished for something warmer.

The scene which Carrigan calls the “death scene” is more than that. The libretto ingeniously manages to wrap up the Miriam-Lucinda plot at the same time.  The scene is fittingly a culmination of the glass-themed style which has featured throughout the work.  True, it is a bit static (so a bit of that time-measuring that I am not so keen on) but a glass church on a barge is sinking into the river.  It’s too late to slip into a waltz.  in truth I expect Carrigan just didn’t like the style that much and by the end was sick of it.

Perhaps she should have gone again to gain a better impression.

There is more I could say about the the staging (minimalist, imaginative) and the performances (energetic, impressive, though some of the chorus-commentary harmony could have been better tempered)  and even about the music, but I’ve run out of energy for that right now.

I enjoyed both nights and they made me think about the novel afresh.  The audience was enthusiastic.  Carriageworks is a funky venue.

The ticket price of $35 was very accessible.  It was even more accessible to me because on the Friday, expecting to be too tired, I made a special trip to Carriageworks to book a ticket for the Saturday so as to be sure of one for the last night. Naively I also thought I might avoid the hated booking fee that way.  That was not to be, but there was a consolation: as I was concluding the bargain, a man returned a ticket to be given away for free.  “I’ll take it!” I cried, leaving no chance before any more tentative bystanders could put in a claim. If I flagged, I could always leave at half time secure in the knowledge I still had a ticket for the next night.  In fact, though impaired by a long day and a couple of post-work drinks I never felt the slightest bit tempted to leave.  It was totally engrossing.


PS: the title to this post is set by Gyger to a melodic fragment not entirely unreminiscent of “Peter Grimes I here advise.”


Narrow taste and the three “B”s

August 12, 2019

Our rented house has two front rooms either side of the entrance hallway.

One, called by D “the study room” (a translation of the Chinese 书房 (shufang)), contains my piano, desk, bookshelves and books.

The other is D’s bedroom.

About a year ago, D proposed these rooms  be swapped.  I wasn’t keen. One week-day a few days later I came home to find it done. D had enlisted the support of some visiting friends to move the piano and other furniture. D himself had emptied the bookshelves and then restocked them according to his own principles.

Yesterday I finally got around to re-alphabetising the piano solo portion of my music. There’s surprisingly little of it: it just about fills a single Ikea “Billy” shelf.


That’s not all my solo piano music.  It excludes anthologies (the alphabetical order I have used is by composer), and my own personal anthologies in tatty scrap-books. These were mostly what I would have lugged to and from piano lessons in later years.

The single red  volume to the left of Beethoven Klaviersonaten I and II  (Henle, cloth bound) is one volume of a Peters edition of the Beethoven sonatas which had been given to me by my grandmother when I was about ten or eleven.  In about 1985, cycling home from a piano lesson in North Sydney, I failed to detect that I had dislodged with my heel a pannier holding its mate as well as a few other volumes. That (and the rise of photocopying) is one reason for the scrap book practice.  You can also fix up page turns more conveniently that way.

I probably have some even more tattered sheet music boxed away somewhere or in a filing cabinet.

At roughly the mid-point of the “collection” so arranged is the yellow spine of the the Schirmer edition of Cramer’s 50 Etudes.

The plastic covered blue spines which catch the light immediately to its left are Henle editions of Chopin.  To the left of Chopin, Brahms, Beethoven and Bach occupy most of the space – so about an eighth of the total for each.

There is a bit of a clump at the right for Schubert and Schumann.

Which composers take up space isn’t a direct indication of what I’ve actually played.  It’s more a question of which composers’ works I have bought in volume form.

Nevertheless, the relative under-representation of Russian and French composers (leaving aside for now that Chopin was arguably half-French) is conspicuous and probably consistent with under-representation in my repertoire.  Partly that’s because they are too hard, but I also suspect it is to do with my own musical upbringing and hence blinkers.




Law skool memories

July 31, 2019

Every one knows about the snail in the ginger beer bottle (though it was never actually proved to have been there) and probably a few people who dropped out of law courses can remember the Carbolic Smoke Ball case, but there are plenty of other cases that stick in one’s memory.

One came to mind today with a news story from the ABC.  A former deputy mayor is facing charges that he murdered his brother in Victoria and his mother in NSW.

In the body of the story was the following:

Cross-border crime presents ‘complex legal issues’

Mr Brand was a police prosecutor for 12 years in NSW and said he had not dealt with a serious cross-border criminal case like this before.

Excuse me!  That’s not a cross-border crime!  That’s two crimes, one on each side of a border.

To be fair, Mr Brand didn’t say it was – only the author of the sub-headline.

A cross border crime is one posed by the question, asked rhetorically of us in Criminal Law:

A man  fires a shot across the Murray River  and kills someone.  In which state has the homicide occurred?  Victoria or NSW?

The answer is: where the person was hit by the bullet.  (There are some other technicalities such as the year-and-a-day rule.  I don’t think it matters where the victim actually died.)

The more amazing thing is that there was  actually a High Court case about this.  That case is Ward v R [1980] HCA 11; (1980) 142 CLR 308.

Edward Donald Ward shot and killed Alexander Joseph Reed beside the Murray River near Echuca. He fired from the top of the steep bank of the river down at Reed, who was fishing by the river’s edge, some thirty feet below.

Ward fired from the Southern bank. He was tried and found guilty of murder in the Victorian Supreme Court. The High Court upheld his appeal because the river bed was in NSW. The border had been fixed in 1855 as being at the southern side of the “whole of the watercourse.”  The whole of the watercourse did not just mean where the water was at a particular time or even where water normally flowed, but the watercourse as defined by the banks.  Reed was killed in NSW.

This wasn’t merely academic, because if the homicide occurred in NSW Ward had available to him a defence of “diminished responsibility” which if accepted would reduce the offence from murder to manslaughter.  This defence did not exist if the case was to be tried as a crime which took place in Victoria.

So, to the ABC news site I say: come back to me when you have a real cross-border (alleged) crime to report!

I’ve found it surprisingly difficult to track down Ward’s ultimate legal fate.  The best outcome for him would have been that a plea of guilty to manslaughter was accepted.

Diminished responsibility  was abolished in NSW in 1998 and replaced with substantial impairment

Mad scenes

July 30, 2019

I’ve already posted about my attendance at the concert performance of Peter Grimes last Thursday and Saturday.

It was a big week – other than for work.  On Wednesday I went to Whiteley and on Friday, as previously foreshadowed, I went with D to the last night of Anna Bolena.

I enjoyed Anna Bolena more the second time around.  In part this was because I was ready to go with the flow of the production and probably more importantly, with its conventions.  At the accusation scene at the end of Act I, is Anna in a tight spot?  Yes, of course she is, but that isn’t going to stop her turning round at the back of the stage and advancing with a reprise of her big tune.

I was able to shut out some of the more distracting projections and annoying business.  I still don’t think AB should raise her hand to King Henry, or nobly forgive Jane Seymour whilst basically squatting, legs wide apart, on a step. I didn’t let such coarsenesses worry me too much.

Going a second time around you know the tunes better and can enjoy them even more.

There was a full house and the work was warmly received.

Seeing Peter Grimes the night before and after means that I’d managed to see within a week the bookends of the operatic mad scene.  Sure, there are earlier mad characters, but Anna Bolena is basically the first of the core genre.  The flute, invoked by Britten in Peter Grimes, is the tell.


SSO does Grimes

July 28, 2019



On Thursday and Saturday last week to the SSO’s concert performances of Peter Grimes.

That is the far-from-full house from my seat in box W on the Thursday.  The Saturday performance was not much better attended.

I almost didn’t go.  When I took out my subscription last year, the concerts were not part of any series I was going to and were priced at a premium.  I am resistant to that sort of thing.

And that’s a problem for the SSO when it mounts concert performances of operas, especially if it seeks to price them at a level which will allow the orchestra to recoup the costs of a quality cast.  Leaving aside my own price-sensitive resistance – and I went to and greatly enjoyed Opera Australia’s production in 2009 which featured, as did these performances, Stuart Skelton in the title role, it’s clear that many of the SSO’s regular subscribers are not keen on vocal works.

I relented just a week ago when it was convenient (because I was going away) to swap my ticket for the Saint-Saens organ symphony, Chabrier’s Espana and Susan Grahame singing Canteloube – a concert which I’m sure I would also have found enjoyable.  I still had to pay extra, which is a bit outrageous in hindsight given how few seats had really been sold.  Not, I might add, that the online booking site disclosed the full picture.  They certainly play their cards close to their chest!

On Tuesday, a friend alerted me to a bargain offering buried (with very little fanfare indeed) in an email from the orchestra that I had not bothered to read, and I picked up my box W seat for Thursday’s performance for $49.  I even (haste dictated it: my chosen seats were disappearing) swallowed the booking fee, which at $8.95 really sticks in my craw.

Given the state of the house on both nights, I don’t think the SSO was trying hard enough to shift the tickets.

Lyndon Terracini of Opera Australia will doubtless consider his antipathy to mounting Britten productions vindicated.  I won’t say he has been proved right – more that he will have had his prejudices confirmed.

I’m glad I went and it was worth going twice.



July 19, 2019


They were playing chess on a mobile phone.

Nights at the Opera [House]

July 14, 2019


Last week (probably by now the week before last) to the Opera House three times.

On Tuesday, to the first night of Anna Bolena.  On Wednesday with D to Madama Butterfly (sorry, Madama B F Pinkerton!) and on Saturday to the SSO with violinist Vadim Gluzman and conductor Xian Zhang.

The operas both use the gigantic video screens which first featured in last year’s Aida.  Writing for Time Out, Ben Neutze has described these as  Opera Australia’s big gamble on the future of opera.  Neutze is a fan.  I am less of one.

Is that just reactionary conservatism on my part?  You could call me a Luddite, but the Luddites had good reasons for their attitude, even if we like to think of them as being a bit like Canute commanding the waves. For that matter the Canute story has probably lost its original nuance.

My main objection is a kind of gut reaction: the video screens turn the stage into a very cold space.  Everything ends up seeming a bit nocturnal.  In a way this worked quite well for Anna Bolena, because the story is set in a dark and claustrophobic world of plotting and AB’s terrible fate.

Musically, I found the first half of AB a bit of a squib, especially in the dramatic bits, which lacked punch.  When it came to the big ensemble set pieces, something wasn’t quite there.  Was it because Donizetti had not yet realised the effectiveness of compound time in such scenes? One reviewer suggested that conductor Palumbo’s tempi were too cautious.   Things picked up in the second half.

At the risk of sounding philistine, a fundamental issue for me was that Carmen Topciu, as Jane Seymour, had a stronger voice with more penetrating overtones than did Ermonela Jaho, who has a more “white” voice, as Anna Bolena.  I wonder if this was part of the problem with the big set pieces – though funnily enough it wasn’t a problem in their big duet.

Robert Johnson was, again, the SSO’s loss and the AOBO’s gain as principal horn.  A bit shamefully (if true) the banda (offstage orchestra) was recorded.  It is not easy to make more detailed comment about the orchestra as OA have ceased selling programs and the (expanded) complimentary leaflet does not list the orchestral players, which seems a bit disrespectful.

I’m going again to the final performance.

The use of the video screens in Madam Butterfly was more restrained than the exuberant effort for Anna Bolena.  Graeme Murphy is the director and we had some projected dancers.  I’m averse to this as it always seems insulting to the (relatively) fat singers – rather like the use of implausible models on publicity shots, or the stylized couple in the SSO’s Tristan & Isolde a few years ago.  Once again, things seemed predominantly nocturnal.  There is of course a bridal night and then a long night of waiting in MB, but the day-time bits didn’t seem particularly sunny by comparison.

Nevertheless, the  mis-en-scene when MB sang “One fine day” was very striking indeed.  D, who is more of a traditionalist than I, was unmoved by it.  A friend visiting from Portugal was very impressed by the whole thing, but then, as he admitted, he is an engineer and loves the new.

Karah Son was terrific as Madam B. Opera Australia is scheduling MB almost like a musical, with alternating casts for the big parts (as well as some cast changes throughout the run).

Xian Zhang  is described as Chinese-American and her presence (as well probably as the Beethoven 5th symphony in the second half) seems to have attracted a larger than usual Chinese presence to the SSO.  This might have been an after-ripple from Lang Lang’s appearance the week before (which I missed – not because I dislike his playing, but because I resist on principle the SSO’s imposition of premium prices as being contrary to the historical compact with subscribers.

Gluzman played Prokofiev 2; the Sarabande from the Bach Partita in D minor for an encore.  I know string players love these sarabandes but I’ve never really quite got them or for that any of the slow unaccompanied string suite movements – the miracle of realising the harmony on an essentially melodic instrument seems a bit like a heroic but misplaced effort when if you wanted harmony you could have played a keyboard instrument instead.

I enjoyed Beethoven 5.  First movement was as expected; as expected (for me) the slow movement the best with the celli in fine form.  A reviewer complained of ensemble issues in the final movement – I wonder if this was because the trumpets (who feature, Fidelio-finale-ishly) were pushed out to the back corner with the trombones taking the trumpets’ usual spot.  I continue to be impressed by Joshua Batty, the relatively recently appointed principal flute.

Two other observations.

I have not noticed this before, but the conductor’s podium in the opera theatre was mounted on springs.  Palumbo conducted mostly from a high stool but would occasionally spring to his feet, at which point the springs would take the force of his jump.  I suppose this is to mute the noise of such conductorly leaps, but I wonder that it might not be a bit disconcerting – a bit like riding an enormous skate board – or do I mean shuffle board?

My other observation is the increasing zeal with which the opera house management, presumably in the name of security, excludes the public from the outdoor areas at the podium level.

When you leave, staff are stationed at the doors to prevent you leaving at that level.  This makes the egress slower and more crowded as we must all trudge down in close confinement to the box office level  where once so “kettled” the majority of the public elect to take the next set of internal steps down to the unwelcoming ground level space where, before the carpark was built,, unpleasant cattle-truck memories must have been triggered for some as audience members were bussed to the Domain carpark.

Before the concert and at interval, Concert-Hall-goers who wish to go outside are confined to a pocket-handkerchief sized space on the harbour bridge side (apparently to preserve the amenity of the Bennelong Restaurant).  The area between the two shells is dead ground; a slightly larger  space is permitted to Opera-Theatre-goers on the eastern side. On both east and west signs the northern corner is particularly fiercely fenced off. Stern black-clad bearded characters (it is an irony that, as traffic controllers are generally Irish women, Australian security guards in the post 9/11 golden age for their industry are predominantly Muslims) mount guard – against what?  That a few bearded scientists might scale the shells and paint “No War!”?

As I left on Saturday, the  empty front steps from the podium level were festooned with those temporary metal fencelets of which the SOH seems so enamoured, maintaining a perimeter around the two shells and the steps to them.  It was unsightly.  A sign directed patrons of the restaurant  to enter from below via the foyer level.

The podium and the steps are part of the original concept of the SOH.  Even if restrictions on means of entrance are justified on security grounds, it is unclear why we shouldn’t be allowed to leave more freely.  The current limitations are unnecessarily contrary to the SOH’s design  concept.

“I’ll write a letter!” is my stock declaration in such situations.  D only laughs. Sometimes he will beat me to it: “Write a letter!” – Needless to say, few such letters get sent.

I know it would be a waste of time writing to the SOH itself. If I were to write, it would be to the UNESCO world heritage listmeisters.  Just as Dresden lost its listing when it persisted in building a bridge, so should the SOH .

German Overalls

June 15, 2019

[For title allusion, see here.]

It’s June so it’s film festival time.

That mainly means the Sydney Film Festival.  More of that later.

First, (starting in May) was the German Film Festival.  That is now one of the many “festivals” mounted by Palace Cinemas through the year.  It can be difficult to keep up with them.  They are these days not so much festivals as special promotions.  Ironically, now that almost all films are screened from DVDs, festivals have lost their logistical ontological necessity.

The equivalent French and Italian film festivals draw bigger crowds – the French because France is so chic; the Italian because there are more Italians here.

I went to:

Adam und Evelyn;
Sealed Lips
The Captain.

There’s a kind of theme, or perhaps double theme, at work here.

The first three are all about “die ehemalige DDR.”

Balloon is a “true story” about an escape from East to West made by two families in about 1978.  There was a Disney film made not long after. This remake could equally be a Disney film from a later age – it was fun though (justly, I’d say) it has been critically panned.

The main premise of the drama is that, one family having failed in their initial escape attempt, the two families must make their escape before the Stasi catch up with them by following the clues.  There is more than one dramatic cliche.  The local Stasi man lives just over the road and his daughter and the son of one escaping family have a romance (I’m thinking “I am sixteen going on seventeen” here).  And the chief escapee-hunter always chews some kind of peppermint or chewing gum, so you know he is a baddie – think Chitty Chitty Bang Bang in the opposite direction and Robert Helpmann as the child-catcher general.

Of the three I liked Adam und Evelyn the best.  It’s based on a novel, about a young couple who almost accidentally leave the DDR via Hungary in the summer of 1989.  The allegory is hardly subtle though amazingly I didn’t really pick up on the hint in the title  until a scene where Adam starts reading to Evelyn from the Gideon’s bible they find in a hotel room once they have crossed to the west.  Not everyone will agree with the implication that the DDR was paradise (it depends really on the very particular circumstances of Adam in this story).  One point I took away from the film was that the people who left in the summer of 89 had little way of knowing that a mere 4 or 5 months later the wall would be coming down. (As a corollary, nor had those who did not go: in the film, when Adam returns to his home at the end of the year he finds it has been emptied of its contents – probably by his neighbours.  Why not?  They weren’t expecting him back.)

I reckon I have detected a new stock figure.  In both films there is a sympathetic character from the mainstream – a bit like the legendary “Cossack who winked” of 1917, or (to draw a more tenuous bow)  the gay boys’ sympathetic (though generally also marginalised in some way) female friend (eg Beautiful Thing).  In Ballon it is a young child’s kindergarten teacher who keeps to herself what the child has blurted out at school; in Adam & Evelyn it is a Czech border guard on the way to Hungary who says nothing about the woman hiding in the boot of Adam’s car.

Sealed Lips deals with the predicament of German communist women who had gone to the USSSR in the 1930s, where they had become embroiled in various purges and ultimately consigned to the gulag.  On their return to the DDR in about 1952 (that’s to say, the return of the lucky survivors), they must keep their USSR sufferings secret.  They foolishly imagine that the death of Stalin might make a difference but find not.  I wish this could have been better.  Part of the problem was to attempt to deal with too much. We had to include a gulag atrocity AND a 1989 flashback which linked to a stymied romance with an idealistic young doctor who had returned to the West a mere 36 years ago – AND they were still talking to each other on the phone?  puhleeze!

Meanwhile, as to the fourth, it’s back to the SBS[the Hitler channel]-syndrome, cos after all we all know that Germans are either communists or Nazis, right?

Hence The Captain.  It’s a film treatment (not the first) of Willi Herold, a German soldier who in the last weeks WWII by means of an adventitiously found uniform impersonated an airforce captain. Proclaiming himself to be on a special mission authorised by the Fuhrer, Herold embarked on a spree of summary execution and mass murder of deserters, “traitors” and, as it happens, 5 Dutch “spies”.  The incident concerning the Dutch “spies” doesn’t make it into the film, though I suspect it was the original reason Herold was being looked for when he was apprehended by the Allies not long after the end of hostilities.

It’s a story which defies belief.  Herold wasn’t even twenty years old at the time.  How can anyone ever have believed his impersonation?  The film posits that it suited people to do so or at least pretend to.   In such dark times (and this applies to Herold himself) it may well be easier to join in committing atrocities than to risk being a victim of such atrocities oneself.  In a variant of the stock figure I have referred to above, just one man, urged by Herold at gunpoint to join in the slaughter, instead shoots himself.

It’s a visually striking film, mostly in black and white which carries its own reminiscence of WWII German newsreel.  At one grim point I had to go out for a cigarette.   Of the four films I saw in the “festival” this seems the most likely to have an (art house) general release.

Language fail

May 22, 2019

The German Film Festival, now more closely tethered to Palace Cinemas than to the Goethe Institut (which is a shame – I miss all those German taxpayer dollars staffing the foyers) started this week.

Meanwhile, this is (roughly) the script for Flight Centre’s current TV advertisement

Nein, Nee, Non, No

No matter how you say it

There are NO  online booking fees at Flight Centre..[usw]

That’s all very well, or maybe just as well, because the German “No’ in the adjectival sense as in “No booking fees” is (depending on gender of the noun)


as in (I got this off the internet so it must be right))

Keine Buchungsgebühr

Was there not one person at Flight Centre (a travel agent which you would think should profess some expertise in foreign lands and maybe their lingo) who could have put this right?


Twinks and Tipstaves

May 10, 2019

Bernard Gaynor is a conservative Catholic activist and blogger.  His conduct as such was too conservative (or more accurately, just too much) for the chief of Australian Defence Force.  He’s particularly down on GLBTIQ types.

Garry Burns is a self-appointed gay activist whose specialty is making complaints about people who vilify gay people.  If you like (and others might say in his dreams) he could be described as a mixed avatar of Peter Tatchell and Quentin Crisp with a touch of John Inmans thrown in.  He likes to make jokes about his pussy – though of course that is really Mrs Slocum, isn’t it?

Garry has been going after public homophobia and anti-gay vilifiers for a while.  From memory, going back, it started with him confronting vilification from his neighbour in public housing, but after that and particularly with the arrival of the internet he widened his field of vigilance.  The public housing is not irrelevant.  As a pensioner in public housing Burns is the perfect complainer and plaintiff as he is practically speaking immune from fear of any adverse costs orders.

Burns makes complaints to the appropriate anti-discrimination bodies and as he is in NSW eventually hauls those he has complained about up before the relevant NSW tribunal – NCAT.  (Other states don’t all have such favourable laws for bringing this sort of complaint.  Under NSW law, apologies and compensation can be ordered.)

Or at least he did.  Eventually Gaynor and another of Burns’ targets scored a victory on a constitutional point.  The point was not that NSW law could not apply to Mr Gaynor in Queensland (for one thing, that would probably come up against the Gutnick case about publication on the internet occurring at the point of receipt), but rather that state governments could not establish Tribunals (which are administrative bodies rather than courts) and confer on them jurisdiction to deal with disputes between residents of different states.

Even before this finally went to the High Court, the NSW parliament enacted a workaround so that discrimination cases which could not be brought in NCAT could instead be “kicked upstairs” to the Local Court or the District Court, which undoubtedly were courts.

(In the meantime (unless it has now been resolved) there is still an incredible inconvenience that NCAT is no longer available as a low-cost forum for consumer disputes between interstate parties or even for landlord-tenant cases where the landlord is resident interstate.)

But back to my story.

Last Thursday, trumpeted in The Australian but nowhere else, Mr Gaynor had fresh proceedings before the NSW Supreme Court to stop Mr Burns from bringing cases against him in the Local Court pursuant to this “workaround.”  The matter was due to be heard before Justice Harrison.

But before the hearing could get under way, Gaynor’s barrister, Peter King, former member for Wentworth, son-in-law of Ian Sinclair and counsel of choice for out-there right-wing clients, had an oral application to make.

It was that Justice Harrison disqualify himself from hearing the matter on account of apprehended bias.

Apprehended bias is not a claim that a judge is actually biased, but a claim that a fair-minded observer would consider that there was a possibility (real, not remote) that the judge might be unable to consider the matter in an unbiased way.  It follows from the principle that justice must not only be done but be seen to be done, and also, in a practical sense, because of the almost-impossibility of proving actual bias.

It has to be raised with the judge.  Judges almost never disqualify themselves and indeed they are under a duty not to be wimps and disqualify themselves just to avoid the aggravation.  Then (provided you have raised it with the judge) if the judge finds against you you can raise apprehended bias as an appeal point.

First you need some background.  Supreme Court judges have two personal assistants.  One is the associate; the other the tipstaff. Tipstaves used to be retired military men wearing a long frock coat who knocked on the court door to announce the judicial entry and carried the judicial staff, though doubtless  they had other duties. Nowadays they are more likely to be recent law graduates – the positions are generally not advertised and appointments are made by the judge personally.

The starting point of the application was that, a few days before the hearing, Justice Harrison’s tipstaff had sent a series of emails to the parties inquiring about the status of the parties’ submissions – that is, were there to be any other submissions, are these the submissions, please provide them where there were none on the file, and the like.

It is generally assumed such messages are  sent with the authority of the judge, even if it is only a standing authority to attend to housekeeping matters in relation to impending cases.  Messages to and from the court are routinely copied to all parties to dispel any suspicion of private communications on the side.  Parties (especially litigants in person) sometimes fail to observe this but the courts are scrupulous.

Gaynor took exception to the emails on two counts.  First, the tipstaff emailed Burns and asked about his submissions, even though Burns was not taking an active part in the case and had filed a submitting appearance – (there’s probably a more complicated story behind this because it is hard to think  of Burns being such a shrinking violet).  So why was Burns being asked if he had any submissions?  Secondly, Peter King had already provided his submissions.  Wasn’t the tipstaff (and hence the judge) saying, in effect “Is this all you’ve got?””

This doesn’t seem like much to base an apprehended bias application on.  Justice Harrison said that, at the time the message was sent, neither he nor anyone in his chambers  knew that Burns had filed a submitting appearance as this had not caught up with the court file which they had just received.  Even where parties have already filed submissions, it is unexceptional to check that those are the final submissions and that there are not any more submissions or revised submissions or further submissions in reply in the pipeline.  It’s basically a kind of housekeeping.

But that was not all. Justice Harrison’s tipstaff has a very distinctive and hence readily googleable surname.  Gaynor is after all a man of the internet, so naturally he embarked on some sleuthing of his own.

And he found out that the tipstaff was gay.  Not only was he gay, but he had written a letter to Honi Soit  (the Sydney University student newspaper) in 2013 defending the Mardi Gras, volunteered for ACON, published a few more articles including a scholarly article about whether transmitting/contracting AIDS should still be considered grievous bodily harm in the criminal law, been an extra in a film “Wear it Purple” and participated in a group including a Mardi Gras float of that name, and on his Facebook profile timeline had posted a copy of a flyer for the Sydney University 2013 Queer Revue “Peter Pansexual.”

A review of “Peter Pansexual” had described it as follows:

“Directors Tom Murphy and Bro Reveleigh brought together a loud, proud, fabulous and unashamedly crude hour and a half worth of consistently laugh-out-loud funny skits. Highlights included the ongoing storyline starring Captain Cock and her dildo hands, the beautiful Fran Gianpanni’s rendition of ‘I’d Gaffa Tape My Balls’ (sung to ABBA’s ‘The Winner Takes It All’), and a Julius Caesar/Romeo and Juliet/Mean Girls mashup sketch.

Head Writer, Blythe Worthy, stole the show with her consistently excellent performances and lovely voice. One of the show’s real strengths was its diverse, nuanced portrayal of the many shades of sexuality. While there were, of course, the requisite gags starring dildos and twinks, the show roamed far beyond stereotypes and sequin jokes and even came perilously close to salient social commentary in parts.”

And there was more.  In October 2018, during the storm over the joint letter from the heads of Sydney Anglican Diocese schools claiming that they needed to be exempted from anti-discrination laws, somebody, now Justice Fagan’s tipstaff, had posted somewhere a comment to the effect “Thankfully my school didn’t sign this ridiculous, backward letter. But many did. [plus a bit more].  And Justice Fagan’s tipsfaff was now Justice Harrison’s tipstaff’s Facebook Friend!

So I suppose the application boiled down to:

  1. The judge’s tipstaff had sent the emails;
  2. The judge had chosen a tipstaff with pro-gay and therefore anti-Gaynor views;
  3. The tipstaff had a Facebook friend who in 2018 expressed other “anti-Gaynor” views.

(1) can hardly have amounted to much on its own; (3) was almost nothing; did (2) take things to some kind of tipping point?

As to 2, Harrison J said:

The personal views of my tipstaves are largely unknown to me, except to the extent that they are revealed in the context of the relationship I have with them as my assistant in chambers. My current tipstaff’s employment was neither influenced by nor dependent upon his social or political views. It was, in contrast, significantly informed by his outstanding academic and employment credentials.

So the answer is no.  The application was dismissed.  (Gaynor v Local Court of NSW & Ors [2019] NSWSC 516)

One publicaton by the tipstaff that Gaynor did not choose to complain about was a rather good submission to the NSW parliamentary inquiry into historical gay hate crimes in Sydney – which I guess was based on a research project for his law degree.  (Correction: google tells me probably his honours thesis for his BA.)

Postscript: others have commented here.

PPS 28/6: Mr Gaynor’s substantive application has now been dismissed. ([2019] NSWSC 805) If Gaynor appeals, he has laid the foundation for an appeal on the basis of apprehended bias.