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ADDRESSTOTHEBDPS Those of you who travel into the City were so many counsel present. ANNUAL DINNER from the south-east may use The only available location large Kingsway. You will know the King's enough to accommodate the Justice Stephen Charles Bridge. It was completed in 1961 at Commission and counsel was the of the Court of Appeal considerable expense to the Hawthorn Town Hall, which had a of community. In 1962 a man called recording and sound magnifying Noble drove over it with a very system which enlivened The following is the text of the large vehicle. The bridge broke. In proceedings by frequently address given by Justice Stephen the ensuing uproar, the Premier, Sir broadcasting radio transmissions of Charles to the Annual Dinner of the , decided there would passing taxis. The system would BOPS at the Hilton Hotel on 27 be a Royal Commission. John suddenly broadcast 'there's no-one June 2001. Starke was then the leader of the here' followed by the taxi driver's and probably of the expletives non-deleted. Starke Australian Common Law Bar. He himselfwas a hugeman, a regularly acted interstate in major dominating and very intimidating matters. Starke was briefed for the cross-examiner. I sat at the Bar principal contractor Utah table between Starke and Dawson. Construction Co. During the course On occasions itwas like being of the Royal Commission, Starke beside a rhinoceros of uncertain but also defended Robert Peter Tait, a potentially very hostile disposition. man of unsound mind who Starke had gout. If any tomato had murdered the unfortunate Mrs Hall, passed his lips in the preceding 24 an 80-year-old in Hawthorn. Sir hours, his left foot ached frightfully. Henry Bolte decided to hang Tait. A If you so much as touched his leg or devoted supporter of capital shoe the result was a bellow of pain punishment, Bolte said that every mixed with rage followed by many time he proposed hanging expletives. someone, his party's electoral vote The President of the Commission increased 10 percent. was Judge Esler Barber, then of the I had arrived at the Bar late in 1961, County Court, who conducted supporting myself by living as a proceedings with gay camaraderie resident tutor in Trinity College. and easy informality. He was When briefs forthe inquirywere assisted by two engineers, delivered, I had the enormous good Professor Louis Matheson (later the fortune to be asked to act as first Vice-Chancellor of Monash Starke's second junior, his real University) and Professor Neil junior being S.E.K. Hulme. My Greenwood. The central issue of the function was to index the transcript, Commission's enquiries, and the in otherwords to do all the hard root cause of the bridge's failure, work. The dogs' bodies of the was transverse welding of high Commission were John Winneke, tensile steel, and the failure of the now President of the Court of welders to preheat the steel. Sir Appeal,juniorto B.L. Murray, and Esler Barberwas an unusual Xavier Connorforthe Country choice for an engineering inquiry. Roads Board, and myself. For us the His forte was divorce. In those days Commission was untrammelled if persons petitioning for divorce bliss, watching some of the best had committed adultery, they had to cross-examiners of the Bar­ ask the Court to exercise discretion Starke, Murray, Sir Oliver Gillard, in their favour. So a sealed and , John Young, Ninian confidential discretion statement Stephen, Noel Burbank and Sid would be filed by the petitioner Frost-taking the witnesses to naming the person co-operating in pieces. adultery. On one such occasion the discretion statementwas handed Conditions were somewhat up to Sir Esler Barberwho opened cramped at the Bartable, there it with his usual panache and

AUSTRALIAN CONSTRUCTION LAW NEWSLETTER #82 MARCH 2002 5 A witness was just finishing extracted a current list of members perfect unruffled Scottish calm. his evidence and, as the next of the Club. Difficulties only occasionally arose in conferences with clients because witness moved to take the Early in the proceedings in 1962 of the unfortunate conjunction of box, I attempted to sneak in I had the first of the eye problems, our names. Whenever Stephen cysts in myeyelid, which have inconspicuously beside addressed me, as he often did in plagued me for 40 years. I was sent Starke. Starke took one look conference, others present were off late one morning to the eye at me and then said loudly frequently left with the impression specialist, who proceeded to cut out that he spent a great deal of time across the silent courtroom, the cyst. I returned to the talking to himself-and naturally ·Your Honour, you've got to Commission shortly after lunch with assumed that a person of such treat ·em rough. It's the only an enormous bandage around my distinction would address himself head leaving only one eye showing. way to keep juniors in line formally. these days'. Awitness was just finishing his evidence and, as the next witness After the matter had proceeded for moved to take the box, I attempted some three months, on 29 June to sneak in inconspicuously beside 1970, Ninian rang me one evening Starke. Starke took one look at me and invited me to his chambers. I and then said loudly across the went expecting a pre-short vacation silent courtroom, 'Your Honour, drink. Ninian said, 'I've been under you've got to treat 'em rough. It's a lot of pressure recently and I'm the onlyway to keep juniors in line going across the road'. Freely these days'. translated that meant, 'I've been offered a position on the Supreme Starke of course went on to Court and I am leaving you in the become a judge of the Supreme lurch'. It was a Tuesday and our Court and a of the realm. arbitration was to resume in a Years later I had to speak as junior week. Most fortunately for me a silk at the Bar dinner and went to new silk was briefed, Robert him for assistance. He had Brooking. Justice Brooking had not appointed as associate a man yet become the author of Brooking somewhat deaf. I asked to speak to on Building Contracts, the first Starke. The associate said he was edition of which was not published sure hewould see me. I said 'Would until 1974, the foreword of course you care to check?' There was a by Sir . The second pause. 'I suppose his Honourwould edition of this excellent work cash a cheque foryou.' emerged in 1980 with the added In 1968 another building dispute authorship of David Bennett and a arose between the Gas & Fuel third edition is now available. It was Corporation and Snam Progetti, the not for nothing that the editor of constructor of a steel pi peli ne which Hudson, Ian Duncan Wallace QC, in was to carry natural gas from the 1998 International Construction Longford to Dandenong. Snam LawReviewdescribed justice Progetti later became part of Brooking as surely the pre-eminent Transfield. The dispute related to judge in construction law matters in the increased and hidden costs of the Commonwealth, in the same construction, in particular due to the article singling out justice David steel welds of the pipeline. I was Byrne for his outstanding work in junior to Ninian Stephen for the Gas the trial of construction cases. & Fuel Corporation. Daryl Dawson, Justice Brooking retires next whose name had been made in the March, and will, I fear, be quite King's Bridge Commission and who irreplaceable. He has been a great was a brilliant cross-examiner, with judge of the Supreme Court, pre­ a tongue like a whiplash, was acting eminent in many fields as well as for the contractor. It was an construction. However, the Court of immense pleasure being led by Appeal's loss, which will be Stephen. He always exhibited irreparable, may be the gain of

6 AUSTRALIAN CONSTRUCTION LAW NEWSLETTER #82 MARCH 2002 practitioners in building disputes, Freeman Fox, an English firm The Westgate Bridge depending upon whetheryou can whose senior partners Sir Ralph collapsed during persuade him to undertake work as Freeman and Sir Gilbert Roberts construction on 3 November an arbitrator. There could be no­ were earlywitnesses in this second one better qualified. After all this inquiry. Another Freeman Fox 1970. The next day I was on I can only say that the brief in the' partnerto give evidence was Dr the still standing southern Snam Progetti matter, involving Oleg Kerensky, whose father, span with David Walsh of more than three months of Alexander Kerensky, was one of the Mallesons, briefed for the arbitration on the part of Ninian leaders of the Russian Revolution Lower Yarra Crossing Stephen and myself, was and Premier briefly in 1917. Sir Authority, neither of us completely mastered by Justice Esler Barber's first report on the Brooking in four days. He was ready King's Bridge inquiry had been very realising in how much to recommence the arbitration by well received as having made a danger we had placed the next Monday. substantial contribution to ourselves by climbing onto engineering knowledge, and hewas The Westgate Bridge collapsed the uncompleted span. asked to act again as President of during construction on 3 November the Westgate Bridge Commission. 1970. The next day I was on the still By then he had been elevated to the standing southern span with David Supreme Court and was shortly to Walsh of Mallesons, briefed for the be knighted. The inquiry principally LowerYarra Crossing Authority, involved issues concerning the neither of us realising in how much design of box girder bridges and the dangerwe had placed ourselves by highly complex engineering climbing onto the uncompleted techniques and arcane span. was my leader mathematical calculations involved. and we worked together for ten Again, an enormous cast of months on the case. Aickin was a was present. B.L. Murray, man of the greatest intellectual now Solicitor-General, led Jim dis.tinction, a classics scholar, very Gorman and John Mornane forthe qUiet and measured, appearing State of Victoria, the other silks often in the Privy Council and in the including William Kaye, S.E.K. High Court, dealing with the law Hulme and Richard Searby for John lords and on equal terms Holland Constructions, Barry and himself later a High Court Beach leading John Barnard for judge. He was an extraordinarily Freeman Fox & Partners, John thoughtful and kind leader. I had Young leading Clive Tadgell for previously acted as his junior in a Maunsell & Partners, and Peter numberof constitutional cases Murphy leading Allan Goldberg for involving interstate trade. On one World Services (the Dutch occasion we had worked up the contractor). It was not so long after argument at his house the night this Commission that Young was before the High Court appeal, appointed Chief Justice of the finishing very late. Our argument Supreme Court. He then received a was due to start the next morning at letterfrom John Mornane, 10.15. At 9.30 in Chambers I comparing him to a sea captain received a phone call from Aickin taking command of a quinquereme telling me that he had been asked of Nineveh on the ground that his to meet the Chief Justice, Sir cargo consisted of ivory, apes and , in his Chambers peacocks. Keith Aickin, until then that morning, and might not arrive much underestimated as a cross­ until precisely 10.05. Absent the examiner by the common lawyers, warning I would by then have been showed himself to be a brilliant and a nervous wreck. Not many leaders deadly cross-examiner, with the would have been so sensitive. intellectual ability to match and The engineering designer of the defeat engineering experts in their Westgate Bridge had been own field. Westgate lasted many

AUSTRALIAN CONSTRUCTION LAW NEWSLETTER #82 MARCH 2002 7 The next day I learned that months, and the witness whose handled in Sydney and the leading the same afternoon McPhee evidencewas most important in practitioners were had been offered the brief for relation to our client did not enter and Michael McHugh, McPheewas the box until near the end. It so in great demand in Sydney, his the ANL, the owners of the happened at that time that my standing being at least the equal of Lake Illawarra and had leaderwas ill. I had prepared any of the Sydney Bar. I have never accepted it. When, outraged, several days worth of good material known anyone to match his lateral I complained to Neil he said, and my turn to cross-examine thinking and I was frequently quite ·Oh yes, I said if I was in your arrived shortly before lunch. Until unable to follow the convoluted position ~ The solicitors then I had remained silent as the paths of his mind. You had to listen grave throughout the inquiry, just as very carefully to anything he said. would have been most upset I had remained mute throughout On the morning Iwas offered the if both of us had gone to the King's Bridge Commission. I had junior brief for the pilot of the Lake Hobart for three months~' asked two questions when the Illawarra, I went to McPhee, told lunch break came. During lunch Sir him I had been offered the brief and Ester approached me. 'Look here that I wanted very much to take it young Charles', he said, 'We are and asked his advice. McPhee going to finish this witness today. thought carefully, and then said that We've been wasting time in this he thought that if he were in my inquiry for eight months and I am position he would have to refuse it, not going to have you starting now.' that our solicitorwould be most upset if I took the brief. With a very In 1974 the Hobart Bridge heavy heart I rang the solicitor and collapsed, having been struck by told him I could not take the brief the Lake Rlawarra, a cargo ship for Hobart. The next day I learned carrying a load of zinc. I had that the same afternoon McPhee previously done some work for the had been offered the brief for the Port Phillip Sea pilots and was AN L, the owners of the Lake offered a brief, as Woods Lloyd's Illawarra and had accepted it. junior for the pilot who had been When, outraged, I complained to bringing the ship into port. Iwas at Neil he said, 'Oh yes, I said if I was that time labouring with Neil in your position! The solicitors McPhee for Monier, which was would have been most upset if both attempting to protect the of us had gone to Hobart for three intellectual property in its months!' automatic roof tile-making plant at Springvale against various Which may stand as a lesson to any predators who were attempting to juniors or solicitors present, improve on Monier's confidential contemplating the briefing of a silk. and very effective machinery, and My invitation from Lance Guymer set up other competing plants, said that each yearyour Society principally in . We were [BOPS] holds an Annual Dinner nowhere neartrial and were featuring a topical guest speaker. engaged in the long slow process of He added that my speech should be interviewing and taking statements connected to building disputation. I from witnesses. McPhee was a have spoken of former leaders of of quite exceptional ability. the Bar forwhom I have unqualified He had passed first through admiration. I hope that can be Duntroon and had served in the called sufficiently topical. .. ! Korean War rising to the rank of Major. On his return to Australia he Justice Stephen Charles address left the army and, turningto the first appeared in the BOPS News law, gained a first class honours (Issue 6, September 2001) and is degree and the Supreme Court reprinted with permission. prize, beating Cliff Pannam in the process. At a time when most of the defamation work in Australia was

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