A record (not a transcript) of a conversation between David Whiting, Jon Faine and the callers identified below, broadcast from 774 ABC Melbourne. Elements of the conversation have been deleted, or edited.
Jon:
Five minutes past ten. Time to offer you the opportunity to get some free legal advice from our talkback lawyer, David Whiting. 1300 222 774 is the number.
David, good morning to you.
DW:
Good morning, Jon.
Jon:
Very sad news in the couple of days I was away and over the Easter break. Melbourne lost one of the giants of our local legal community: Brian Bourke.
DW:
Yes, extraordinary man. I must confess I never knew him professionally. I never briefed him, but I knew him socially. For a number of years, we were in the same groups that went to the races.
Jon:
Oh okay.
DW:
He enjoyed a punt. Fascinatingly, he never drank. His dad was a publican; presumably he learnt while working in the hotels as a young man that sometimes it pays not to.
Jon:
Yes. More than sometimes. I’m trying to think of a way to explain to people who have no knowledge of Brian – although he was a guest on this program recently and we’ll play you some of that in a moment – trying to explain to people exactly what significance he played. And the best I’ve been able to come up with, I guess, is what Ron Barassi is to football, Brian Bourke was to the Melbourne legal community.
DW:
Yes.
Jon:
Is that a fair description?
DW:
Yes. Look he wrote a text book on liquor licensing law, he wrote a text book on criminal law that ultimately turned into loose leaf services. He was a friend to everybody as a barrister, as a solicitor there was an open door policy, you could ask him anything and he would endeavour to help you.
Towards the end, he never applied for silk, never applied to be a QC; even though he was a barrister for 50 years. And he simply just kept rolling on and dealing with lots of people at face value and was really keen on making sure the police played their part properly.
Jon:
A mentor to probably thousands, but definitely hundreds of people. Generous and, not long ago, was a guest in this studio and now I have to admit to a regret.
DW:
And the regret is?
Jon:
The regret is that Brian came in, he agreed to come in for an interview about a specific topic, I managed to distract him a bit and talk about Ronald Ryan, a case that he was personally involved in. But at the end he agreed – reluctantly I might say – but under some pressure, he agreed to sit down and do an oral history interview. But I didn’t actually do it.
DW:
I don’t think you would have had enough tape, Jon. When Brian wanted to talk the words just kept coming.
Jon:
He was a gold medallist. But he did agree to come back. He said alright well let’s set aside an afternoon. I’ll come in, I’ll sit down and I’ll tell some of my stories. And I said great, well let’s organise it.
And you know, in the month or so since he promised I haven’t actually done it and now he got unwell and very quickly in fact died after a terrible stroke. Great that he didn’t suffer but… Another time I’ve had that same regret, a couple of times I’ve had that regret with people who have said yes alright I’ll sit down and tell some of my stories and then before you know it, bang, it’s gone.
DW:
Well I heard that a couple of years ago, he spoke at the Victorian Bar Dinner; where you normally get someone particularly learned. They got Brian to talk and everybody had a fantastic time.
Jon:
Well he was a raconteur like few others. When he was here, he was here to talk about sculpture and the arts. He was also involved heavily in football but from the public’s point of view mostly they were interested in the role he played in the last execution of a prisoner in Australia, Ronald Ryan; a man who Brian Bourke helped represent. And he was telling us the story about how the then Premier Henry Bolte, later Sir Henry Bolte, had determined that for political reasons he wanted to hang someone.
Recording:
Brian Bourke:
Bolte had determined what was going on and it was apparent then that he, Bolte, had been prevented from executing Tate and it was obvious that he wanted to execute somebody, and Ronny was the boy.
He told us in some detail and you can go to the website and have a listen to this, it’s in our archives, just look up Brian Bourke on the Conversation Hour on ABC Radio Melbourne. He told us about his last conversation with Ronald Ryan.
Brian Bourke:
I can remember going out there to see him and I spoke to the governor and he got him brought up and I was in the room with him, in the office, and he was saying to me, I mean it’s pretty hard to talk to a bloke who thinks he’s going to die a couple of days later, and this bloke’s holding my arm and saying ‘you did all you could.’ Sorry to get upset.
Jon:
No, no, no.
Brian Bourke:
‘You did all you could, I will go to the gallows and I will not be in any way concerned with the fact that those people who represented me didn’t do all they possibly could’ and anyway Jack Brosnan confirmed all that; in the way they walked up together and before he went to the gallows. The irony of the thing was they used to invite you to hangings. Fancy being invited to a hanging.
Jon:
And there were people who were brought in as witnesses.
Brian Bourke:
I was invited. I didn’t go.
Jon:
Brian Bourke talking about the execution of the last person sent to the gallows in Australia, here in Melbourne: Ronald Ryan. The Jack Brosnan he is referring to is Father Brosnan the Catholic priest at Pentridge Prison at the time. And the interview concluded with me asking Brian whether or not he formed a view or maintained any secrets from his private conversations with Ronald Ryan given the passing of the years was it time for Brian Bourke to give up some of those secrets?
Recording:
Brian Bourke:
I’m not saying that he told me that he did it, I’m just saying that there were certain conversations with him that I thought were just between the two of us and I’ll keep ’em.
Jon:
Even 50 years on, you’ll keep that confidence?
Brian Bourke:
However long I live; yes.
Jon:
However long I live. Well Bourkey you are much missed and there are many, many people that are sadder for your passing is about all I can say and add to that.
DW:
That’s a fantastic tribute.
Jon:
Yep, an amazing man, an absolutely amazing man.
Other things. There’s an extraordinary story in the Financial Review today, David. A former construction company supervisor claimed unjust dismissal and bullying and harassment in the workplace because of persistent farting by his boss. The plaintiff represented himself, 18 days in the Supreme Court and lost the case for compensation.
DW:
For compensation for wrongful dismissal and for whatever injuries he claimed he suffered.
Jon:
Claiming $1.5 -2 million.
DW:
And lost.
Jon:
How can it run for 18 days?
DW:
Well the gentleman concerned was self-represented. All the indications are that self-represented parties add substantially to the length of a hearing.
One of the things you learn as a lawyer is to try and drill things down to their essence. A self-represented litigant has a different view as to what the essence of the case is and tends to want to add lots of evidence and make lots of arguments.
Jon:
But doesn’t the judge have an obligation to say the courts are a precious resource, the community are paying for it, you can’t just take 18 days to argue about someone farting at you in the workplace.
DW:
I haven’t read the transcripts, Jon. It may well be that there were 18 days of content. But also the court needs to recognise that from time to time self-represented litigants need assistance to make sure that they put their case forward. But three weeks is a long time.
Jon:
Alright, other news?
DW:
Very quickly, Jon, a correction from last week. We had a caller from last week who wanted to know about the selling of her mother’s house and it was nearly two years from her mum’s death, and the question was the two year period where prices are assumed not to increase starts on the person’s death and ceases two days after the date of death. Not two years after the grant of probate.
Jon:
Right.
DW:
And you need to have completed the sale of the property between the two years. That is settled. The advice I gave last week was sign the contract of sale; it’s settled.
Jon:
Okay, keep that in mind
DW:
The second one is we had a caller who owned a block of units that he was going to sell and he’d never actually worried about the owners’ corporation because he owned everything. What happened in terms of the rules of the owners’ corporation – because it was a forty year old development the standard rules apply – the standard rules are contained in a schedule to the owners corporation rules. So the fact that it was subdivided under the Subdivision Act didn’t help, it’s the current rules.
And one last one, Jon. There’s a chatbot in the Northern Territory writing wills. The story is on the ABC website. So some years ago State Trustees had a facility where you could give instructions on a website. This is a lawyer in Adelaide or the NT who has a website that will generate the will for you on the basis of the questions that you ask and the information that you provide.
Jon:
I was sitting in Darwin Magistrates’ Court last week, watching proceedings.
DW:
Okay.
Jon:
Always fascinating, recommend it to anyone that’s up that way.
Let’s get to today’s callers.