Garfield Barwick

ADDRESS Garfield Barwick The following is an edited version of an oration given by the Hon Tom Hughes AO QC at the 2012 Garfield Barwick Address. Any memoir of Garfield John Edward Barwick should begin with a brief description of his family background. He was born on 22 June 1903, the eldest of three sons of Jabez Edward and Lily Grace Barwick. Both parents were of English stock; each of them had a rural background. After marriage they settled in Sydney, first at Stanmore, where Barwick was born; and then at Paddington, in a rented terrace house situated in Glenview Street. Barwick was born into a stable marriage. His father was a printer, an occupation requiring close proximity to lead so that he later suffered incapacity for work from lead poisoning. Barwick's mother was an Ellicott. She was probably the stronger partner in the marriage. They were practising Methodists, a non-dogmatic religion that sets great store on the importance of hard work as a pathway to Picture by Steven Siewert / Fairfax. salvation. Barwick attended Sunday school. He showed brilliance as a student at primary school this gap by working as a managing clerk in a firm of and obtained a scholarship to Fort Street Boys High, solicitors run by Roy Booth, also an old boy of Fort a selective high school that was a seedbed for the Street. later development of professional skills. His career at Barwick was admitted to the bar on 1 June 1927. Fort Street won him a scholarship to the University Then he had to find chambers in which to establish a of Sydney in A rts/L a w where he graduated in 1925 practice. This was no easy task. If found, they would with first class Honours, sharing the University Medal be shabby in appearance. It was generally necessary for law w ith Simon Isaacs, who later became a silk for newly admitted counsel to share any available and then Supreme Court judge. Early in his school accommodation. Barwick’s first, temporary, perch in career, Barwick formed a firm ambition to become Phillip Street became available through the kindness a barrister. of Sybil Greenwood, who was the only woman in While at the Sydney Law School of the University of practice at the bar. While there, he met WA Holman Sydney, Barwick served articles of clerkship; to HW KC, a former Labor premier who had split from his Waddell, an experienced and competent solicitor party on the issue of conscription during the First with a mixed practice whose quite frequent absences World War. His chambers had separate secretarial to run a country property owned by him created space, which he made available to Barwick. Holman's many opportunities for his articled clerk to exercise interest meant much to this young man of 24 initiative. He took advantage of these opportunities. embarking on a risky career. In those days there was In the later stages of his articles Barwick's weekly no requirement of pupillage. earnings reached nearly 10 pounds, in those days Barwick had to decide for himself how to develop an enormous stipend for an articled clerk. Waddell forensic skills. There was then a clear division offered him a partnership without payment of a between the common law bar and the equity bar. premium but his mind was set on admission to the Many of the common lawyers were given to loud bar. He suffered a setback on this journey because voiced declamation in the hope that this technique he forgot to register as a student-at-law. There was would prove persuasive to juries, by whom nearly all a formalistic requirement of two years 'service' as common law cases were tried. The equity lawyers such as a condition of admission to the bar. He filled were not noisy. Their demeanour was quiet and 60 | Bar News | Autumn 2014 | understated. They were known as equity whisperers. Barwick’s misjudgment in deciding to sue A leading exponent of their style was CA Weston, who became a busy silk and made his submissions Atlantic Union resembled the conduct of an in a sibilant undertone, addressing the judge as escapee from a lions den in re-entering it to 'Honour' instead of 'your Honour'. Sir Frederick recover his hat. Jordan once described Weston's argument in an appeal as 'enveloping the court in a cloud of algebra'. Barwick wisely decided to develop his own style of service station business. Because Douglas was a advocacy. minor, Barwick had assumed primary responsibility to the oil companies supplying the service station In his autobiographical memoir A Radical Tory1 to pay debts owing to them by his brother. The Barwick described his own choice of forensic business failed and Barwick was in trouble. Atlantic technique: Union Oil, a client of my father, who was a well- I came to think that as an advocate I should adopt a quiet renowned solicitor, acted for that company, which presentation, leaving room for raising the voice and for issued a bankruptcy petition against Barwick. The gesture when emphasis was needed, but concentrating on petition was dismissed on the ground that Barwick reducing to simple terms the issues to be decided and the and Atlantic had reached an accommodation for principles of law to be applied. I thought I should act on the footing that the jury were intelligent, honest and deferred payment of the debt. Then Barwick ill- capable of being instructed in even the most complicated advisedly sued Atlantic for defamation arising from matters of fact and that they could apply principles of law words published about him during the course of if these were simply expressed; that in general they would the dispute that had culminated on the dismissal of listen closely to what counsel and the judge had to say. I the petition. This prompted Atlantic to seek a re thought that my task would be to persuade them by logic hearing of the dismissed petition, for which purpose and good sense. I realised that there is room in appropriate my father briefed LS Abrahams KC - a redoubtable cases to press the jury to give effect to human values where silk with a fearsome court manner. A re-hearing the law seemed not to do so. ensued. A sequestration order was made. A period of crushing penury ensued for the young married This was a judicious choice. He had many possible couple. The bankruptcy had an adverse effect on his role models in the, then, not very crowded ranks of practice; but he managed to survive with the aid of the New South Wales Bar (about 100 members). his ever-devoted wife, who returned to her former There was GE Flannery KC, a master of the art of employment as a seamstress to plug the deep hole simply framed submissions, who once addressed the in their finances. Barwick’s misjudgment in deciding High Court by confining his citation of authority to a to sue Atlantic Union resembled the conduct of an passage in Anson on Contracts. Then there was WF escapee from a lion's den in re-entering it to recover Curtis KC (clever but with a mischievous mind), who his hat. When I came to the bar, Barwick well knew was in the habit of pulling the leg of Andrew W att KC that I was the son of the solicitor who had procured when they were opposed to each other. AV Maxwell his bankruptcy. This knowledge did not colour his KC, was a planet in the com m on law firm am ent. He attitude to me. We became friends. He made a public thought well of Barwick and was responsible for speech supporting my candidature when I stood as getting some work for him. a Liberal candidate for Parkes in the federal election By 1929, when in his second year at the bar, Barwick in 1963. was making sufficient progress to enable him to ask When in 1971 I was down and out after William Norma Mountier Symons to marry him; she accepted. McMahon had terminated my office as attorney- Shortly after their marriage, near-disaster struck. general, the Barwicks asked me to their Pittwater 'Times were turning down and recession was upon residence for a luncheon to meet Lord Diplock, us'.2 Barwick's brother, Douglas, was conducting a Bar News | Autumn 2014 | 61 ADDRESS Although Barwick’s rather subdued method advocacy worked well, it took a long time for the big end of town to hock to him with briefs. All this of advocacy worked well, it took a long time changed with the Bank Nationalisation Case in 1947 for the big end of town to flock to him with when Norman Cowper of Allen Allen & Hemsley briefs. selected him to take the leading brief for the Australian Banks in the High Court and later in the before whom I later appeared in two Privy Council Privy Council. An important task in that momentous litigation was to prepare, in conjunction with appeals. Frank Kitto, the argument that s 92 invalidated the Barwick's method of tackling the tasks of advocacy legislation. Kitto was a superb equity draftsman, as was successful. After his discharge from bankruptcy, Barwick acknowledged to me when, while working his practice went ahead by leaps and bounds. He as his junior in London in 1955 in a s 92 case, I asked and Frank Kitto, who were contemporaries, became him to assess the weight of Kitto's contribution to the opponents in a case that Barwick lost. This was the Bank case.

Load more