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A Barrister Without Peer

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A Barrister Without Peer REVIEW ESSAY A BARRISTER WITHOUT PEER Tom Hughes QC: A Cab on the Rank By Ian Hancock The Federation Press, 2016, $59.95, 432 pages ISBN 9781760020583 Reviewed by Dyson Heydon he principal features of Tom Hughes’s skill. And far from the least sign of that skill is the life are quite widely known—or ought masterly prose in which a very detailed account of a to be, because he could say as Gordon very long and rich life is presented. Samuels used to say, alluding to Othello’s It can never be easy to write a biography the Treference to the Venetian Senators: ‘I have done the subject of which is still alive. On the other hand, if state some service, whether they know it or not’. the first biography to be written about a person is And the principal virtues of this book are quite written after that person has died—particularly, as in widely known through their description in other Sir Owen Dixon’s case, quite a while after that person reviews. has died—inevitably the death of contemporaries The book, whether taken as a whole or in any will entail the loss of material that can never be discrete part, reaches the heights one would expect retrieved. This biography has been written at a from Ian Hancock—an extremely experienced time when it was possible to avoid that waste. It professional historian and biographer. He had access takes many talents to cover a life of to public materials about Tom Hughes’s service to distinction in such varied fields— the state (war papers, Hansard, Cabinet notebooks military service, legal professional and the like) and his service to the legal profession life, a political career, pastoral (law reports, articles, biographical works and press activity—against the background material). He also had access to many private of changes in mores and opinions papers preserved on a scale which is uncommon over nine decades. These talents these days (school reports, family letters, diaries Ian Hancock possesses in ample and autobiographical writings). A remarkably large number of Tom Hughes’s associates survive and The Hon. John Dyson Heydon AC QC is a former have been interviewed. The work is the product of High Court Judge and member of the 8th Floor Selborne full cooperation between author and subject. All Chambers in Sydney. these advantages have been exploited with matchless POLICY • Vol. 32 No. 4 • Summer 2016–2017 49 A BARRISTER WITHOUT PEER measure. This is one of the finest biographies ever style and obscurity in expression. He took immense to have been written by an Australian or about an pains to avoid these faults himself. Ian Hancock Australian. And the Federation Press, too, deserve describes well his intolerable wrestles with words praise: the production of this book is, by local and meanings in the course of a passionate search standards, of exceptionally high quality. for precision. Another important factor was his training at the This is one of the finest biographies ever University of Sydney Law School, bisected by the years of war service. The mature Tom Hughes was to have been written by an Australian no narrow legal scholar, ardently pursuing juristic or about an Australian. concepts for their own sake. For him the law was a tool. It was a means to an end beyond itself. But The balance of this review aims simply to the somewhat positivist didacticism of his teachers highlight some aspects of Tom Hughes’s ensured that he entered practice with a good all- professional life. The golden years of that life flowed round knowledge of the law. He knew the leading after his departure from the Federal Ministry in cases and statutes relevant to practice at the Bar. 1971 and particularly after his departure from Over the years he appeared in a great many leading Parliament in 1972. Those golden years would cases himself. Leading cases have roots stretching never have happened but for the vicissitudes back into the past. They scatter seeds which grow of politics. Tom Hughes always had stature in up after them. The result is that he had no need Parliament from his election in 1963. Sir John of legal digests and encyclopaedias to ascertain the Gorton’s wise selection of him as Attorney-General law. Nor, in later days, was it necessary for him to was justified by a short but successful tenure. Tom bring in the over-abundant harvests available from Hughes’s dismissal by Gorton’s experienced, able computer searching. He knew basic principles. He but deeply loathed successor, and his perception knew the major cases which stated them. He knew of an unpalatable prospect of many lean political the forbears of those major cases. He knew where years ahead, were blessings in disguise. These those major cases had led. He knew where they circumstances influenced Tom Hughes to return might well lead. The result was that he was a very to what was, from both personal and public points good lawyer. He was very good partly because of of view, his real métier. Another significant year what he knew and partly because of what he did was 1985, which, as AJP Taylor said of 1848, was not know. When he started practice, it was a turning point at which history failed to turn. In relatively easy for a lawyer to be familiar with the that year he declined an invitation to become Chief main Australian and English cases in a particular Justice of the Supreme Court of the Australian field. Well before he left practice, the available Capital Territory. It is difficult to think of anything authorities had become massive. Like unwanted that would have caused him greater unhappiness weeds, they were tending to clog and muddy than acceptance. the streams of clear thought. Tom Hughes was familiar with the authorities and the principles So the golden years began, and they proceeded into he needed. That familiarity was not destroyed by the sere and yellow. What were Tom Hughes’s skills over-exuberant accumulation of detail. No-one in those golden years? What were their sources? could have conducted a High Court practice in A key factor was his educational background at the constitutional and commercial fields he did St Ignatius’ College, Riverview. Then as now it was a without being a lawyer of highly developed skill. highly regarded school. It was probably even better A marked feature of his professional habits was then than it is now. For Tom Hughes the education his total dedication to the interests of the client. was strong on the languages side (Latin, Greek That dedication was coupled with organisation. and French). The school taught him how to work One aspect of that organisation was an insistence and how to inquire. From its influence sprang his on punctuality—a virtue on diminishing display in detestation at the Bar of bad grammar, ugliness of many areas of modern life. He was never late for 50 POLICY • Vol. 32 No. 4 • Summer 2016–2017 DYSON HEYDON court. He arrived there tense, full of energy, but rugged, pugnacious but handsome appearance, not flustered. He was an early starter in chambers his mastery of educated English, the extreme care and rose very much earlier. If he fixed a conference with which he chose his words and the impact for 6 am, even before 5.50 am there would be some damning phrase had on being rapped out consultation of the watch every minute with after a significant pause, his evident sincerity and muttered grumbling to the effect: ‘they’re nearly seriousness, his wide experience of the world, the late’, ‘why can’t they get here?’ and ‘this is intolerable’. patently strong grip he had on the facts and the And woe betide those who arrived after 5.50 am. law and his gumption conveyed as a larger than Juniors soon learned the lesson or perished. He life impression. He could dominate a courtroom abhorred waffle. He detested delay. He thought, not only by the vigour and trenchancy of what he like Mirabeau, that one should never ask for said but also by his minatory, forceful and striking time—disaster never gives it. He always wanted personality. He was listened to in total silence to isolate what was relevant and get to it as fast as and in an atmosphere of crackling tension. What possible. That was true of his written opinions. It happens in courts is serious business for most was true of his written submissions. It was true of people unfortunate enough to be there. He brought his oral addresses. And it was true of his elicitation to his work in courts an appropriately serious and cross-examination of testimony. He believed demeanour. His eyes and ears were acutely sensitive deeply that in law the glittering prizes of victory to everything that happened there. He detested never come without hard preliminary work. As being distracted by extraneous noise in court. the years went by he had to deal with material Judges trusted him. Most of them appreciated his that became more voluminous, flabby, chaotic talents. They welcomed his presence. They listened and ill-focused. These trends were the product of very closely to his questions and submissions. They new customs in large solicitors’ firms, the advent knew he was not just a paladin mouthing colourful of the photocopier, the fax and email, and the phrases, but their best hope of grasping the points growth of over-complex legal rules grasping after which would lead to a just result. They knew he was the illusion of individualised perfect justice.
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