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THE HON. MURRAY TOBIAS AM RFD QC

Edited transcript of interview with Juliette Brodsky for the NSW Bar Association 23 August 2018

1. TURKS, TEA PARTY AND KERRY PACKER Q Well, Murray Tobias QC, thank you very much for making time to be interviewed for the NSW Bar. A Thank you, Juliette. Q I’d like to start with a little political discussion we were having before the interview. You have never been tempted to be in politics. A Absolutely not. Q But you’ve observed a lot of interesting political situations over the years. Given your reputation for courtesy and tact while you were on the bench, do you sometimes deplore the lack of tact, the lack of civility in our public discourse? A The answer to your question is clearly yes. The lack of partisanship – both federally and NSW (they don’t call the NSW parliament “the bear pit” for nothing) can only impact negatively on the public interest. One sees it in the United States at the present time and particularly in the conservative politicians both in the US and in this country; also in the Federal parliament today. The conservative faction of the Liberal Party has moved further to the right both in the US and in this country more than I’ve ever experienced before. The Liberal Party’s broad church described by has been whittled down to a very narrow church. I’ve always been a middle of the road person. I’ve got no time for extremes. Ideologues do not contribute to the public welfare. Q You’re giving me the impression that this is something new in your lifetime – leaving aside the second world war, when you were very young. A I think so. I suppose I didn’t follow politics too much until I was in my 40s or 50s. As one matures, one starts to give more thought to these things. Prior to that I was concerned with my own career and personal life. You start to think more laterally as you get older. I may be wrong, but I think it’s become worse. In the US, you have the evangelicals and the Tea Party. The current attempt to unseat the President is doomed to failure – if (Donald Trump) was impeached, the President would be the current Vice President, (Mike) Pence. Pence is worse than Trump – he is a far-right evangelical adherent. In many respects, he would be worse. 2

Q Turning to your early years – I read that your father (Raymond Tobias) was a highly esteemed solicitor (who) in fact had a very long practice - 58 years, is that right? A That’s right. He kept his practising certificate until he was about 80 or even older. His ambition was to be the most senior solicitor listed in the Law Almanac. I don’t know whether they still have the Law Almanac today but it used to list all the barristers and solicitors – it’s all probably online now. Q It is. A He said he’d hang around until he was the most senior solicitor in the state – he missed by one (year). Vincent Pike of Pike, Pike and Fenwick who was a few years older than my father stayed on and on and on and outlasted him. My father eventually said “That’s enough – Vincent wins.” They were actually very close colleagues. He was a wonderful man, Vincent Pike, and a great gentleman, as was my father. My father had the great ability to get on with difficult people. He was the chairman of a company owned by Kerry Packer – a company that ran Perisher Valley. My father had a lot to do with Kerry, who wasn’t an easy person to get along with. But Dad had the ability to get on with difficult people. When my mother died (of cancer in her mid 60s), my father then tried to raise money for cancer research and the first person that coughed up was Kerry Packer with a cheque for $100,000, which was a lot of money at the time. Q Very generous indeed. What was your father’s technique for dealing with people like Kerry Packer? A He was a good listener. I always remember him teaching me, with respect to correspondence between solicitors, particularly young solicitors - young turk solicitors, who worked for the mega-firms. I don’t know whether it’s still the case but it probably is - pages and pages of abuse, they write to each other, threatening all sorts of things, like reporting them to the Law Society and so forth – all of which is charged to the client, on a time basis as we know. My father’s view of this was that you never ever get into that type of correspondence with another solicitor. If you disagree with what they say, you simply write, “I have your letter of so-and-so. I note what you say. I disagree with it. Yours faithfully”. That was his technique. There was nothing there for (them) to reply to. Whereas with these young fellows who keep writing to each other, all it does is generate more irrelevant correspondence, for which the client has to pay. Maybe things are better now but it used to be the case when I was at the Bar. Q Was that an example you conscientiously tried to follow – not to get too caught up in those sort of acrimonious discussions? A Yes. I’m a peace-loving person, I suppose. There’s a mood in litigation these days – and has been for many years - for mediation to try and 3

bring parties together. I think that’s just an example of what should have occurred many years before. Q Do you think if you had your time again, you would be a mediator first? A No. I mediate now from time to time simply because that’s the only thing that I can do. Obviously I don’t want to go back to the Bar and I’m too old anyway. I can’t appear in court and wouldn’t want to, because under the rules, you can’t appear in a court of which you were a member, or in a court from which there was an appeal to the court of which you were a member. Anyway, I wouldn’t want to - I don’t think it’s appropriate for judges to go back to the bar, other than (a) consulting role.

2. SCOTS COLLEGE AND NOTETAKING FOR JOHN HOWARD Q So your father was influential for you, growing up? A Yes, he was - very influential. He was a very moral and ethical man. He wasn’t religious, but he had a very high standard of ethics, (some of) which I like to think rubbed off on me. Q Was it his or both parents’ decision for you to attend Scots (College)? A I was very young at the time. It was because Scots was the closest school to where I lived. Therefore I could walk there on my own at the age of 5 without crossing any roads. That was the actual motive behind it. It was also only five pounds a term, which seems nothing these days – we’re talking 1944. During the war, my mother and I and later my brother lived with our grandparents in Victoria Road. Scots Primary was just off Mansion Road. In fact there was a kindergarten on the corner of Mansion Road and Victoria Road, which I attended, and then I just went up the road to Scots Prep. Q What kind of a student were you, Murray? A Poor. Q Poor? A Very poor. My parents were at their wits’ end when I was about 8 or 9 at Scots, to the extent that they took me to a child psychologist. A Mr Masters – I remember his name. All my reports indicated “Murray doesn’t concentrate, Murray does this, Murray does that” – all negative. “Murray has the capability of doing better but doesn’t try” – comments to that effect. So they took me to this psychologist who was supposed to point me in the right direction but I don’t think he ever did. I never excelled at school. Even when I got to secondary school – I used to receive a lot of Saturday morning detentions for talking in the French and Divinity classes, sitting at the back talking. I remember spending my Saturdays writing out 1000 times “I shall not talk in class”. I was a 4

poor student. All my friends were good students and did well, but I didn’t start to do any good until I arrived at law school really. Q So, no helpful teachers or experiences that catalysed you into improving? A No. I did reasonably well in the Leaving Certificate. I managed A’s in Maths 1, Maths 2, Physics and Chemistry, a B in English, and failed French. I was no good at languages, unfortunately, and that’s one thing I really regret in my life – that I never learned a language. I think that it’s critical today for children to be bi or trilingual.

3. UNIVERSITY Q I was asking before whether you were a late developer? You did well later at university A Well, I always liked physics, chemistry and maths. In those days you could do honours for the leaving certificate. I was no good in English or languages. I did reasonably well in those subjects in the leaving certificate. I either came first or second in the state for chemistry – for the pass course, not the honours. So then I commenced arts and – this was at my father’s suggestion – I wanted to do subjects that I hadn’t done at school: modern history, philosophy, English and music. I loved music, but was tone deaf and couldn’t play anything but in first year you could get away with that. I did those four subjects – I failed English – and then swapped immediately to law. In that year, most of the class failed English – it made the Sydney Morning Herald – “whole class fails English”. There was quite a hoo-ha about it – not that it made any difference to me. If I’d stayed in arts, I would have had to do four subjects, and Music 2 which I couldn’t do. One of the exercises that our music lecturer required us to do was when she played ten intervals on the piano and you had to write down what they were. I could never recognise more than 2 – I could recognise the dominant fifth and the octave and that was it. We did harmony and counterpoint, which I could do (just), but I used to do it all mathematically. In other words I’d learned all the notes in accordance with the rules, but I couldn’t hear what I was writing. If you tried to play it on the piano, it sounded gross. Q You mentioned philosophy before – I don’t suppose you studied with John Anderson? A I did. Q What was that like? He was at the end of his career by the time you started at university. A I didn’t meet him on a personal level but I attended his lectures, particularly on logic. I enjoyed his lectures on that – I don’t have much 5

of a memory of them now but I loved them – syllogisms they were called, and they stood me in good stead for my later career. Q Was he a bit of a subversive presence? A Not in my view – I was there to have a good time. Q Did you write for Honi Soit? A No. Q Were you there with (the Hon.) Ken Handley? He wrote on the value of liberalism for Honi Soit. A I can imagine Ken doing that. Q He wasn’t in your year, though? A No, he was two or three years ahead of me. Q When you commenced law, who was in your intake? A Jeremy Badgery-Parker, who won the medal. Roger Gyles – “Short Roger” as he’s known. Malcolm McLelland. Terry Cole. The late Brian Beaumont. Ken Carruthers, and 90 others. Q Were you close friends with any of them in particular? A My friends were John Howard – Q The John Howard. A The John Howard. Peter Strasser. Jim Cameron (who went into politics) and Marcus Einfeld. We used to sit together in class. I used to take a carbon copy of lectures for John Howard who half the time wasn’t there – he was at some Young Liberals’ meeting. I always say the only reason he got through his law (degree) was because of my notes. Q Would he say so too? A He acknowledges my assistance – I’m given that credit. I’ve seen him here on a couple of New Year’s Eves. Our year has a lunch every five years, getting a little bit more frequent these days as a few people have dropped off the perch in the meantime. Q Do you recall any law lecturers fondly or who were to have an influence on you? A Not really. I do remember one lecturer who taught us Roman Law - an Oxford graduate, who was a very good lecturer. He didn’t last very long for some reason, I’m not sure why. There was Professor Parsons, Professor Benjafield, Professor Morison and Julius Stone. I didn’t get on with Professor Stone, I must say. 6

Q Why was that? A I wrote an article for the Sydney Law Review. It was a case note – “Green against someone” (I can’t remember who the defendant was). He kept rejecting it because either the paragraphs were too long or too short, not so much for its content but for its form. He got up my nose a bit, I must say. Julius was quite a formidable person. He had an intellect that was rather superior to mine, to say the least. I struggled through his book – it was very hard going – he wasn’t a good writer.

4. HOT AS HELL WITH NO VENTILATION Q So at the time, were you resolved to go and do articles and become a solicitor or were you already thinking of going to the Bar? A I didn’t have any views one way or another. My father never put any pressure on me. All my friends at school did medicine. I worked out that I could only be a patient of one of them, whereas if I was a lawyer, all of them could be my clients. That was the thought that went through my head at the time. I didn’t have the stomach for anatomy. I just drifted into law. When I was doing arts, at my medical friends’ insistence, I went up to the old med school at Sydney University. I’d just had lunch – I had a sandwich and went into the anatomy room where I took one look, fled and was violently ill. My friends thought it very amusing. Q Med students often had a grisly sense of humour. I have seen photographs of skeletons sipping tea in academic gowns. Was that the kind of atmosphere you’re referring to? A No, seeing all those cadavers. Q You graduated with first class honours in 1961. Who else shared the honours with you that year? A There were three awards of first class honours. Jeremy Badgery- Parker got the medal. I was proxime accessit. Third was Roger Gyles. Q It sounds to me as though you’d caught up to yourself by then. A I suppose so. I started to do well academically in my first year in law, much to my surprise. They used to put the results up outside the Telegraph in Castlereagh Street the night before. All the students would be gathered around. I eventually was able to have a look to see if I’d passed and found than I’d done more than passed. It surprised me more than it surprised others. I was fortunate enough to continue my academic achievements for the rest of the course. Q Was there conscription at the time? Did you also have to contend with that? 7

A Yes, earlier than that, when I was doing arts. It was by ballot, but I wasn’t called up. I was upset about that, because some of my friends were called up. I wanted to do it, but wasn’t successful in the ballot. Q Where did you do articles? A Smithers Warren and Lyons. John Smithers was very close to my father – my parents’ closest friends. My mother stood in for Jean Smithers at her wedding, as her proxy. She was ill so my mother had to take her vows for her. Q How did you find doing articles? A John Smithers was a disciplinarian. In those days, Smithers Warren were the solicitors for Tooth & Co. He did all Tooth’s work and one of his partners did the licensing work, and I used to do all the filing. I remember having to work in this strong-room which was internal. It would have been one and a half metres square, pretty small, and hot as hell with no ventilation. I was required by John to go through all the new leases and write up cards for them. He said it was very good for me to know all the lessees. In those days, the freehold was owned by Tooth and lessees could only serve Tooths beer until that was exploded by the Trade Practices Commission. Q The ACCC would never allow that now. Did any of the partners give you advice? A They gave me some work to do. Usually debt-collecting of some sort. Q Did you find that emotionally difficult? A It was easy stuff, not emotionally challenging.

5. OXFORD UNIVERSITY AND CRUCIAL CONVERSATIONS Q What caused you to decide to go to Oxford University? You did a Bachelor of Civil Law there. A One thing my father wanted was for me to follow him to Exeter College. His father was quite elderly when he married; he died when my father was very young. His mother I think was English. Before my grandfather died, my father was schooled both at Kings and Sydney Grammar. At the age of 13, his mother took him back to the UK, to Brighton where he attended primary school and then he went to secondary school, Wrekin College in Shropshire and then Oxford University to read law at Exeter College. His mother came back to Sydney and after two years became ill. Regrettably he had to return to Sydney because he was an only child and she had no relatives here. He never finished his degree at Oxford and had to start again at Sydney University. He was always very strongly supportive of the (Exeter) college, which I suppose he instilled into me. I am still very supportive of the College. 8

Q So you went to Oxford and fulfilled your father’s ambitions. A I didn’t want to go – I had a girlfriend but that lasted two days. Suddenly I was on the ship – Q “Falling towards England.” A I went on the Canberra – its maiden return trip – it was terrible. Q Why? A No women. Q Oh. A There were lots of guys and about two girls. I had a Commonwealth Scholarship. We used to get to one end of the (Suez) canal, go off to Cairo and pick up the ship at the other end, during which I caught some bug and by the time I got to , I was quite sick. I went to a doctor and then an ENT specialist who diagnosed sinusitis. This was a good luck story. The name of the ENT surgeon was Mr Capps and he had his rooms in his house, which was in Park Square East, one of those wonderful Georgian homes. I was ushered into his room. He was quite a gruff man - he said, “Who are you?” I told him. “Where are you from?” I told him that. He asked what I was doing there. I said I was going to Oxford. “What college?” I said “Exeter”. He replied, “I have a son at Exeter.” He said he would send his son to see me. I was sent to a hospital and had the procedure and the following day there was a knock at the door, and a fellow put his head around the door and said “I’m Ian Capps”. He said when I got up (to Exeter College) to contact him. And the rest is history – we were close friends, and still are. He introduced me to his friends and they became my friends. So I was incredibly fortunate. Not withstanding that, in the first four weeks, I was very homesick. I’d never lived away from home before; my parents had returned to . The law fellow at Exeter, Derek Hall sent me to see the Vinerian Professor at Magdelen College, Professor (Harold) Hanbury. I went up to his rooms and he sat me down and talked to me. What he said to me, I have no memory of, but all I can say was when I came out of there, I was cured. Q Really? A I went in homesick and came out fine. Q I’d love to know what he said to you. A So would I. Q Do you remember his demeanour? A As I said, whatever he did, he cured me. I cried when I went, I cried when I left but for totally opposite reasons. 9

Q You were very fortunate. A I was. In those days, if you were a foreign student, you were there for two years. At the end of the first year, you did two exam papers – one in Jurisprudence and one in Roman Law. (For) Jurisprudence, I went to lectures by Professor H.L.A Hart, who had just published “The Concept of Law” – rather like one of Julius Stone’s books, hard reading, but obviously written by a genius. Anyway I had a wonderful time and then in the second year, I had to put my head down. Q Party’s over. A The party was over. In those days, the colleges were not co- educational. Q They had rules, too, about visiting young women, didn’t they? A You had to get them out without being caught, by 10 o’clock. The only way to get them back into the college was down the end of Brasenose Lane, where you had to be able to climb over the wall. There was a metal cross on the wall and a bicycle underneath it. You would balance on the crossbar of the bicycle, grab the prongs of the cross and haul yourself up and over the 4 metre high wall of the college. Q How often did you perform that feat? A I could only do it when I was reasonably drunk, otherwise I wouldn’t have had the strength or the willingness to do it. Q Were there many Australians at the time doing civil law with you? A There were three. We had a class of about 22; now they have a class of 100. These days, they have 1000 applicants for 100 places. In 1961, in order to be accepted into the BCL, I had to graduate with first class honours (from Sydney University). They would only take first class honours graduates from recognised universities. There were four Australians. One of them became Solicitor General and a Supreme Court judge in South Australia (Graham Pryor); another became a lecturer at Melbourne University, and the other I lost touch with. I made some very close friends who I am still very close to. We Skype, email and talk to each other on the phone, especially during rugby season. Our friendships go back nearly 60 years. Q Were there legal cases happening at the time that interested you? It was a time of great ferment and cultural activities in England. A Not unless they were part of my syllabus, to be honest. You had to write one or two essays a week, so you were pretty flat-chat doing that. Then you’d attend on your tutor, who would then proceed to tear them apart. I was very fortunate in my tutors. I was taught Evidence and Conflicts of Laws by Peter Carter from Wadham College, who was the most frightening person I’d ever come across. Quite tall, rather large, never smiled. Everyone was frightened of him. He sent me a lovely 10

note after my results came out which I kept many years in a safe in our home, which was robbed. I didn’t care about the valuables in there but I did care about the letters. He sent me a handwritten note, which said “Dear Tobias, I am told that you distinguished yourself in your BCL examinations. You may be interested to know that I am not as surprised as you may think. Yours faithfully, P.B. Carter.” Q So, he was really a softie under that exterior. A Until it was pinched, that (note) was my most precious possession. I’d always thought that he regarded me as a complete dill. It’s certainly the way he made you feel. Then I was taught Administrative Law by Lennie Hoffman, who became Lord Hoffman. He was the law fellow at Hartford College. I remember going to his classes which he conducted with Professor H.W. Wade who wrote the-then standard text on Administrative Law. The great thing about the place was that you were taught by people who wrote the textbooks that you read back here. It was also one of the things that caused my homesickness. I was surrounded by legal luminaries, I was mixing with local students who were all extremely bright and it was all too much – that’s why I became homesick. Then I was cured, I don’t know why. Q Given that you were cured, what made you decide to come back? You could have pursued a career in England. A I was going to apply for a junior lectureship – an Amelia Jackson scholarship at my college. At the time, I had a girlfriend I didn’t want to leave, but my parents wanted me to come home and I came home. I never resented coming home. It was obviously the right thing to do. As long as I could keep up my friendships, which I did, and I was fortunate enough to have a number of trips to the Privy Council, which enabled me to catch up with my college friends. Q You really had the advantage of being familiar with two cultures, which was to stand you, I’m sure, in good stead. A My friends were all from different disciplines. One became a lawyer/developer, another a Professor of Oncology. One was a brewer with Guinness, another was a teacher, economist – they were all from different disciplines. Ian Capps was a classical scholar and became, initially, a journalist with Reuters.

6. ADMISSION TO PRACTICE Q So, you were admitted to practice in 1964, a few months after you returned? A I arrived back in Sydney on the day (President) Kennedy was assassinated. Q Of all the days to return… 11

A I’d come from San Francisco where I’d been staying. The airplane landed and as it was taxiing towards the terminal, the captain announced on the loudspeaker that news had just come through that President Kennedy had been assassinated. There was silence on the aircraft because there were a lot of Americans and then a number of people burst into tears. You always remember where you were when Kennedy was assassinated and when Diana was killed. Q Did you go along with the ideas put by the film JFK? A No. Q You thought the theories were far-fetched? A I’m not a conspiracy theorist. (Lee Harvey) Oswald killed him; I have no idea who put him up to it. Q So when you returned in late ‘63, you finished articles. A I finished articles at my father’s firm – Lieberman and Tobias – and then decided I wanted to go to the Bar. I had to finish my articles to get admitted anyway. I had about 10 months at my father’s firm, and then was admitted on 5 October 1964. 54 years (ago). Q The person who moved your admission? A Dennis Mahoney. He was my father’s favourite senior counsel. Q Did you have much opportunity to brief Dennis yourself? A No. The only barrister I briefed when doing articles was Andrew Rogers who was then a very junior junior. I briefed him to appear in the District Court on debtor examination orders. That’s what I did in my first year at the Bar – that’s how you made your weekly income. You’d find these people who owed a debt. When I was an articled clerk at Smithers Warren, they acted for Custom Credit, which was a big finance company in those days. They used to get default judgments against them and then issue them with an examination order. You’d have to go up to the District Court, and they’d be called out. You’d take them aside and find out what they could afford to pay back in instalments – for that, you’d be paid three guineas. Q Did they use to call them “guas”? A Yes. Guineas until 1966. Q Starting at the Bar, your master was John Kearney? A He was my official master, my unofficial (master) was Doug Milne. That’s how I got into the local government area, because he and Trevor Morling had a monopoly on local government law and planning. Doug could do anything – he was a terrific barrister. When I first went to the Bar, Philip Twigg, who was John Smithers’ son-in-law, was kind enough to give me a desk in the corner of his room on the 3rd floor of 12

Wentworth (Chambers) so at least I had somewhere to sit. That was in October and then out of the blue in December, Milne contacted me and said there was a vacant room on his floor, 6th. I could have it because its occupant had been appointed Solicitor General. It was going to cost me 7000 pounds. That’s how I got onto the 6th floor and I stayed there for my whole career at the Bar. I have no idea why Doug picked me. Q He must have done some asking around perhaps. He might have known your father? A Maybe he did. I don’t know. Anyway, he was very good to me. I used to do a lot of work with Doug, got to know his solicitors and got into the area of local government and environmental law, which stood me in good stead for the rest of my career at the Bar. Q You mentioned you had an unofficial master – I take it that you did more work with Doug than John? A Yes. Q Did you devil for either of them? A Yes, I devilled for both of them. I devilled for John Kearney because I wanted to do equity as well. John Kearney was a wonderful man, an absolute gentleman. He and Bob Henderson. Those were the days when there were only 450 barristers and 40 silks. The open door policy, as it’s referred to, was working – it does still today, but in those days you could go in and ask any silk or senior junior for their assistance with a problem, and they always provided it willingly.

7. CROSS-EXAMINATION AND DIFFICULT CLIENTS Q What did you learn from John Kearney? A Being polite to your client, being polite to your solicitor and opposite counsel, and of course the judge, even if you thought the judge was wrong. Humility. How to properly prepare your case. I learned cross- examination from Doug Milne because he had learned it from J.W. Smyth – Jack Smyth, who was a great cross-examiner. Q Who wrote those famous cross-examination notes. A I’ve got those notes. When I was President of the Bar, I made sure his cross-examination notes were compulsory reading for every junior barrister at least once a year. The techniques are still valid. Q Did you apply every one of them? A Yes, plus one I learned from Peter Hely. Q Which was? 13

A You ask a witness a question to which the answer is clearly “yes”, and they obfuscate, to which you’d follow up with, “The answer to my question is ‘yes’, isn’t it?” And they’d say “yes”- nine times out of ten at least. It was very effective. I passed that on to my grandson who is at the Bar. Q Do you recall any particular early cases as a baby barrister, where you had interesting experiences with clients or before the bench? A Not really. I’ve had some interesting clients - difficult clients - over the years. One was Emmanuel Margolin, who owned a large property out at Mulgoa. Q When you say “difficult”, do you mean someone who refused to take your advice? A He wouldn’t take my advice. I did a case for him. He had a lovely wife who was French, Cecile was her name. Emmanuel was pretty well- known. He was quite fiery – a Frenchman from Alexandria in Egypt. He was suing an insurance company in relation to a number of fires on his property. The insurance company was defending the claim on the basis the fires were intentionally lit – arson. I didn’t want him to go into the witness box because he would have to take the fifth and I wasn’t sure that he would. Because there was no question in my view, that the chances were that he did light them or had someone do it – Q A bit of “French lightning”. A I didn’t want him to give evidence and his wife didn’t want him to give evidence and he was insisting on giving evidence. We had an offer from the insurance company that wasn’t a very good offer but it got him out of the problem. He wouldn’t take it and wanted to fight on and I said eventually “I won’t appear for you if you’re not going to take my advice. I’ll get an adjournment – you’ll have to get another counsel.” He eventually very reluctantly took the advice and I never got any more work from him, which was fine. Q There’s a limit, isn’t there? A Well, some people you just don’t want to work for. Q No. A You have to if they brief you, under the cab rank rule, but otherwise, no. He was difficult – the other (client) who was difficult (but interesting) is Harry Triguboff. I used to do work for Harry. He was fiery, too. He was good-natured, though. He’d rush into your chambers and say, “Why can’t I do this? Why can’t I do that?” “Well, Harry….” “Ah, don’t worry about that!” He was amusing. Another client I had difficulty with was Susan Wakil. She died recently. Q What happened with Susan? 14

A She was incredibly difficult and demanding, but a very bright woman. Q So she argued with you? A No, but whenever she wanted a conference, it was yesterday. Then she wouldn’t pay until the next conference. She’d send a cheque up the day before. One of those sorts of people, which was very annoying. Eventually I had quite a row with her and I said I’d never appear for her again, which I didn’t. I’ve forgotten what it was over, but it wasn’t very pleasant.

8. SPECIALISATION / NOTABLE COUNSEL Q You would have observed some interesting situations over those years. With your decision to practise more in equity, especially in planning and local government - were you interested in broadening your practice, criminal work? A Not criminal work but I eventually did semi-criminal work when I gained entry into the naval reserve. I ended up as a Defence Force Magistrate and did a lot of work as Judge Advocate so I got into the criminal side that way, but only from time to time. No, I was happy to work in any commercial law area. In the local government area, I did a number of cases in which councils were being sued for negligence. Q Yes, I interviewed about an early case (of his) where a mother sued Waverley Council over the drowning of a little boy in a ditch they’d dug. She sued them for negligence. A There were two cases in which I sat on the Court of Appeal and (in) which I wrote the main judgments – people who’d dived into shallow water and broken their necks and who became quadriplegics. One was an Irishman. One (accident) was into the ocean and the other was in an estuary. They weren’t heard together, but it was decided that the judgment in one would await the judgment in the other. The trial judge in one (case) was Justice Virginia Bell (now the second-most senior judge on the High Court) and it was Justice Whealy in the other. I wrote both judgments – one of them was upheld in the High Court and the other one I think was reversed, though I am not sure. They were interesting cases – terribly sad. Q Did you develop views of your own over the years with regard to councils and duty of care? A Not particularly – I wrote them as I saw them. Q I just wondered because of your specialisation in administrative law - did you come to develop a great interest in government process? A Not really, to be honest. When you’re at the Bar, you do what you have to, to win (cases) and as a judge, you do your best to come to the right result. I never got waylaid by the politics of it, or gave much 15

thought to what improvements could be made or not made. You were too busy, to be honest. I’m not like some people – I don’t have their discipline, but I enjoy the law. As I’m now a reluctant retiree, I’ve probably a little bit more time to think about things and read things in the paper with which I agree or disagree. I’ve taken a great interest in American politics over not only this president but also his predecessors. It’s more interesting than ours. I’m not a Ken Handley. Q A lawyer’s lawyer. A He’s a lawyer’s lawyer. He’s written two or three books and still writing, I imagine. The law really consumed Ken, which is fine if that’s the way you want to go, and he’s been very successful. Good luck to him. Q In those junior years, were there particular counsel you admired or whose example you profited by? A I admired Eric Miller – he retired when I was fairly junior. He was a great jury counsel – probably should have been chief justice – and a terrific man. He had a wonderful son, Julian, who was a priest and a Rhodes Scholar at Balliol College, Oxford. He was so popular there that he was made president of their junior common room, which was unusual for a foreigner, and unknown for a Catholic priest. He rowed in their first eight. He was a wonderful after-dinner speaker – he and Gordon Samuels – both wonderful after-dinner speakers and both from Balliol, I might add. Julian then left the priesthood, married and had children. He was a wonderful man and took after his father. Eric Miller was very expansive, generous, kind and ethical. Ted Lusher – he was an interesting character. Again, I learned a lot about cross- examination from Ted – I was his junior on numerous occasions. Q Such as? A He taught me the use of documents in cross-examination. I did a wrongful dismissal case with him and we were for the defendant, the employer. Lusher made me go through all the documents that were discovered, and I found all sorts of things. He made me organise them in such a way that he could cross-examine this fellow to establish that he had evaded tax, and I would just hand him the documents: bang, bang, bang, he destroyed (the witness). They tossed in the towel after he was cross-examined. Q It all came down to pure organisation. A Proper organisation and Ted knew the questions to ask – in one sense following the Smyth theory of closing all the gates. Have you read that document? Q I have. It is timeless. A I say to my grandson Harry that he’s got to read it once a year. Q He does? 16

A He says he does!

9. TOO MUCH DOCUMENTATION Q These days, cases go on so much longer than they used to. Do you put that down to too much documentation? A Yes. There’s far too much. The amount of trees cut down is horrible. On the Court of Appeal, a case would go on for quite some days at trial and lots of documents were tendered – I’m not too sure they were actually used - and then we’d get the coloured appeal books, and all the blue books would have all the documents. You’d get ten or fifteen of these jolly things – that thick, you know – and you were referred to a miniscule proportion of them. Yet they all used to be printed. We would tell counsel we would not look at any document not referred to, either orally or in writing. “We’re not going to start at page one and work out for ourselves which ones are relevant and which ones aren’t. If you want to rely on a set of documents, you’ve got to take us through them.” The result of that was that the vast majority of paper that you got became irrelevant. I carried on about that when I left the Court and referred to that in my farewell speech. Q You must have thought it ironic that people talk about paperless offices and this was the exact opposite. A Eventually the Court will go paperless. I’m not a computer person. I’ve got a computer but I couldn’t type a judgment on it. I dictate and I had staff to do that. As I said, eventually the Supreme Court will go paperless – it’s moving in that direction - but I like hard copy so I can underline things. You can’t do that on a screen. Also, I find if I’m staring at a screen too long, my eyes get very tired. Q They’ve now found that people’s eyes are damaged from looking too much at screens. A You say to the solicitors, “Why don’t you just give us the documents that you’re going to rely on? Why not print those? Why print every piece of paper that’s been tendered?” What happens in the lower court, is they tender the whole lot – bang – and the judge says “I’ll mark it ‘exhibit A’ but I’m only going to read what you refer me to”, which is fair enough. But in the meantime, when it goes on appeal, all this stuff comes up again – all reprinted. Thousands of pages. Q I suppose they think they’re covering their bases – is that what it is? A No, you say to them “Why can’t you just pick out what you want?” and they say, “For us to do that, we’d got to detail someone to do the job. It’s cheaper for us to print the lot than it is to employ someone to go through and pick out the documents that you want”. It’s a cost thing. I mean you only end up looking at the documents you are referred to, anyway. As I said, you’d be lucky if it filled one volume. 17

10. WOMEN BARRISTERS Q With regard to your years as a junior, I wanted to ask a bit about your readers. One of them was who went on to the Court of Appeal1). You were briefly junior to her on that bench. A I was junior to her the whole time on that bench! Q She mentioned to me that while she was reading with you, you had some difficulty persuading some of your solicitors to brief her. A Except in family law matters. Q Yes. That (era) was not an easy time for women barristers. A No, it wasn’t. Q How did you manage to overcome that while she was reading with you? A I’ve no idea. I don’t know the answer to that, to be honest – too long ago. I like to think I became very supportive of women at the Bar and I certainly am now (and have been for many years). I was when I was President. I was very cranky when Margaret took a judicial job because she was really doing well. She’d got herself out of the family law area – she was in the commercial area, particularly in corporations law. She had the room opposite me on the other side of the corridor, and she was only 39-40 but she had three young children. Q That’s always the difficulty for women barristers. A This is why – when you look at the bare numbers – we’ve got relatively few women silks compared to male silks. They take silk maybe for a couple of years. Governments want more women on the bench – and a couple of years later, they’re on the bench, so keeping their (silk) numbers down, which is a pity. If (women) do well, which most do, they will get another chance at judicial office. Q Maybe society is catching up now, with it being more acceptable for men to stay at home and look after the children. Perhaps if Margaret Beazley was doing it all over again, she might do it differently. (I see you look skeptical, though!) We have more flexibility in workplaces. A The Bar does have arrangements with childcare centres, and not before time. I can understand why a lot of women might not want to leave their child with a nanny, but these days it’s an accepted thing. If you’re a successful silk, you can arrange for a nanny. If you’ve got two incomes, you can afford it. Q That’s true. Moving into the 1970s, what do you feel is the greatest difference between the Bar of that time and now – you’ve talked of

1 Margaret Beazley AC QC became Governor of NSW in May 2019. 18

family arrangements for example. What else has changed at the Bar, before you took silk? A The Bar’s not for everyone. I’ve always thought Murray Gleeson is a good example of this - you’ve got to have a bit of a ruthless streak to be a successful barrister. You’ve got to be able to take someone on, not only your opponent, but a witness for instance. Q Do you describe yourself as ruthless? A No, but I tried and I enjoyed the sensation at times, which says something about my character. You do get a deal of satisfaction out of destroying an essential witness of your opponent, if you do it properly. I have done that a few times, I suppose. Cross-examination is a very important part of being a barrister.

11. THE NAVAL RESERVE Q Before you took silk, are there any cases you recall strongly? A I really didn’t keep track of cases in that way. You finished one case and went on to the next. You didn’t have much time to cogitate. But you always come out of a case learning something. There’s always something you could have done better. You don’t have too much time on your hands to do a post-mortem. It’s like an exam you’ve done, it’s over and finished. But at the Bar, if you do make a mistake, then I always thought about how I ran the case and how I could do it better. I think that’s important – that you learn from the cases you do. You can always find something you can do better, in all probability. Q You were captain in the naval reserve – A Yes, I finished up a captain. Q - and also presided over a number of defence force inquiries. I’d like to know about your involvement in the Navy – it began in 1968. A Yes, the legal naval reserve grew out of the Royal Commission into the sinking of the Voyager. In those days, the Navy didn’t have lawyers – it had supply officers who did the legal work but they weren’t qualified. The Navy got quite a shellacking in that inquiry and the subsequent inquiry into the sinking of the American destroyer by the (HMAS) Melbourne. Laurence Street spoke to the naval people and said, “The Navy need their own practising lawyers, and they need lawyers from outside. There’s a number of very good barristers who’d be delighted to help the Navy.” He organised with the Director of Naval Legal Services, Captain David Robertson (Justice Alan Robertson’s father) - he and Laurence set up the Naval Legal Service and Laurence organised for three or four junior members of the Bar to become reserve officers with the rank of lieutenant. David Voss was one, Ant Vincent was another. Bill Dovey I think was the third, until he went on 19

the bench. Then Harold Glass came in as head of panel and then Terry Cole and I got an invite to join their ranks (it was done by invitation in those days). That was good fun. Q Did you immediately become interested in all that kind of work? A Yes. The first case I did, as I recollect, was as a prosecutor in a court- martial at fleet headquarters at Woollomooloo. It involved a petty officer who had nearly sunk a submarine. The captain of the submarine was a fellow called Tim Duchesne. Tim and I became quite close friends. What happened was that the submarine was submerged and this petty officer pulled the wrong lever – it went up instead of down. Had the error not been discovered in time, the boat would have been flooded and sunk. Tim put him up for court-martial for negligent performance of duty, and he was found guilty. Q Did the term “human error” ever creep into hearings in those days? A No, this fellow was highly trained. There was no excuse. The other submarine case I did was the one when they lost those kids overboard, do you remember that? Q Yes. It was much more recent. A It was off the coast and these sailors were outside on the submarine’s casing, recovering some equipment. The captain decided to dive but no check was made to ensure that everyone who’d gone out had come in, and these kids drowned. That was a terrible tragedy. It wasn’t a court martial – it was a coronial inquest. I appeared for the Chief of Naval Staff and I had to report to him after court every day. He had a broken leg and was in the naval hospital at Balmoral. The odd thing about it was that the captain was never court-martialled, to everyone’s surprise. But then they brought in a much stricter regime: that everyone going outside the submarine had to have their name checked off and they had to be checked back in before she dived. Q There was a considerable amount of emotion around that case. A Yes. I was there to defend the service, you see. My instructions were to keep a fairly neutral stance.

12. TAKING SILK AND ENVIRONMENTAL LAW Q Just backtracking a little, did you apply for silk many times? A Only once. People said, “why don’t you apply?” So I applied and was fortunate enough to be successful. Q What about soon after - was your practice as busy as ever? A No, it dropped off as they all do, but you’re allowed to finish the work you were doing as a junior, but charging only junior’s fees. 20

Q Did you develop a special fondness for environmental law? A Yes, I did, at Oxford. The course I did with (Lennie) Hoffman and Professor Wade was administrative law and town and country planning. The latter was legislated but hadn’t been in force for all that long. It was a new area and that piqued my interest in environment law, or planning law more accurately. Then I started to do it as junior to Doug (Milne). There was a case where my opponent was Trevor Morling. He was appearing for Pioneer Concrete, which wanted to build a batching plant at Lane Cove. Milne was briefed to appear for Lane Cove Council to oppose it. The major opposition was coming from Tuta Laboratories which had a site near the batching plant. Tuta made blood products and blood transfusion equipment and therefore had a high standard of hygiene. They couldn’t have any cement dust coming in their premises. Doug got jammed and said to the solicitor, “Tobias can do it on his own”. I was against the great Trevor Morling who had a wonderful reputation and was a great teacher and still a close friend. I was suddenly pushed into this case and I hadn’t been at the Bar that long, in front of Martin Hardy, but much to my surprise I won it. I remember I had to cross- examine a professor from Melbourne University, who was the star witness for the applicant. I was able to do it more or less successfully. However, winning cases for councils in front of Martin Hardy and Rae Else-Mitchell, who was the other Land and Valuation Court (judge) wasn’t all that difficult. Q Why was that? A Because they always found in favour of the council anyway! Q I see. A Or more times than they found for the applicant. Q What was the point in that case that turned in your favour? A Oh, whether you could design filters that would stop cement dust entering their sterile premises. Tuta made all the blood transfusion equipment – therefore they needed to be out in the bush where there was no industry and they wanted to keep it that way. Q Environment law is all about the impacts of one person (or entity) on another – its wide area effects – did that interest you? A Yes, I’ve always been interested in it, as a junior and as a silk. But I acted on both sides – sometimes for developers and sometimes against them. Q It would have remained a rich area of work for you. A It did. I had a number of retainers, one of which was Mirvac. The trouble used to be – (clients would) come to you after they’d put in their DA and it had been knocked back by the council. They should have (instead) come to you before they actually lodged their DA so you 21

could tell them (what to do while they prepared their documentation). They always used to come to you too late. But Mirvac were very good – I was able to eventually teach them. When they had a proposed development, they would come to me and talk about it. We’d go through the documents and see where the objections would come from. I’d go and look at the site and I’d always try and get them to go and talk to the people (affected) before they put a DA into council. They rarely had to go to court as a consequence. I got involved (which I thought was going to make my fortune so I could retire young!) with a group who had an option on land at Kurnell. The land was being used for sand extraction but it was coming to the end of its life. The group had an option to purchase a very large area of land and they were going to put a residential development on it, an 18 hole golf course, and two hotels. The members of the group were Peter Montgomery - I had a small percentage interest in it – Roger Gyles, John Coates, Neil Ingham and Sonia Lyneham. We knew the objections would come from the Kurnell village so we went and talked with them, found out what they wanted, before we put pen to paper. They had the refinery there and they were keen to get something that was good, and we built all that into it. Eventually it went before council without objection. But the economy collapsed so we had to let the option lapse, which was a pity, to say the least. There were all sorts of issues with aircraft flying over and so forth, but we’d put together a very good team of experts; we looked at it very conservatively, got all the locals and then the councillors on side and we did it very carefully. Q It’s interesting, the consultation process you used. A Developers today just go straight in and they always ask for more than that to which they’re entitled. It’s an unfortunate way of doing it. Q Do you think also government agencies would benefit from more consultation (with affected parties)? A It’s not so much the council or even the department planners who deal with large-scale developments. The trouble with metropolitan council planners - many of them don’t seem to be interested in sorting out small-scale developments. They’re busy and they’ll tell the applicant’s representatives anything to get rid of them. Some are helpful, but a lot of them really don’t help you that much. The worst are the ones who say you can do this or that, you do it and then they change their minds. Q I interviewed a planner once who said the best tools any planner could have is a good pair of walking shoes and binoculars. Would you agree? A Well, you need the walking shoes. That’s interesting you should mention that. I’ve seen developments which look terrific on paper, but when you look at them later when built, you think, “God how did I possibly advocate for that?” I look at the casino today and think “it looked better on paper!” 22

13. PRESIDENT OF THE BAR COUNCIL – THE GEOFFREY PROUD AND ALAN JONES Q I want to ask you about your time on the Bar Council. It was a time of considerable turmoil, because of plans for increased competition in the profession. A We were having trouble with Professor Fels, who was a most difficult character. Q He chaired what was then the Trade Practices Commission. A I went to talk with him, and he sat there, silent and poker-faced. I never got any feedback from him – so I had no idea what he was thinking. So I just talked until I ran out of things to say and then he’d say goodbye, and you left. Q He didn’t ask you any questions? A Never. Never gave any indication of whether he agreed or disagreed with what you said. It was a very unnerving experience. We were aware of the competition issue; there was the move to amalgamate the profession. There was the business about solicitors’ practicing certificates and barristers’ practicing certificates – we got over that quite cleverly, I thought. We had two certificates: one was a barrister’s certificate and the other was a solicitor and barrister’s certificate. (The solicitor) could call themselves “barrister” but they never do. One could have trust accounts and one could not. The other thing we did is to revamp the Bar rules. At the time, the Bar Council in the UK was doing the same thing. Peter Goldsmith (later Lord Goldsmith) – he was Tony Blair’s attorney general – and was chairman of the English Bar Council. We got to know each other very well. We swapped rules, each of which was pretty much the same, and we cut out all the anticompetitive provisions. Bret Walker (SC) did the main job on it for our Bar, and I gave as much assistance as I could (given the calls on my time as Bar Council president) and we came up with a pretty good set of rules that passed muster. It didn’t make any difference to anything anyway!

Q Why do you say it didn’t make any difference? A Well, the Bar’s still the Bar and the solicitors are still solicitors – it’s pretty much the same. Q It was a big deal at the time – right around Australia, each of the states was grappling with competition in the law. A I didn’t think the TPC knew what they were talking about, really. The theory was that there should be competition between barristers and solicitors to do advocacy work. What they never understood was that people become solicitors because they don’t want to be advocates. If they want to become advocates, they go to the Bar. But they don’t. 23

They do some of their own advocacy – in terms of directions hearings, mentions – they’ve taken some of that work from the junior bar but a lot of it is coming back again because they don’t really want to spend their time doing it. They don’t really want to go on a Friday to Justice Hammerschlag’s court and sit there for three hours, waiting to be called on, at the client’s expense. Let some junior do it at a cheaper hourly rate than their instructing solicitor. Q There are more solicitor advocates now, though, aren’t there? A Not in the Supreme Court – I don’t know about the District Court. There’s always been solicitor advocates in the local court. There’s certainly more of those, which is a shame. I cut my teeth doing magistrates’ court work – DUIs, negligent driving, cross-examining policemen - that’s how you learned your trade. Most of that work has disappeared and suburban solicitors do their own (advocacy). But they’ve always been entitled to do it. It’s not like in England where solicitors did not have the right of audience. NSW solicitors have always had the right of audience. It’s always been their choice. Sometimes people don’t like standing up and being chewed up by a judge, or a magistrate for that matter. “Let someone else cop it – why should I?” It depends on what you feel comfortable and confident doing. It really hasn’t made all that much difference. Q All the same when you were president of the Bar Association, I recall reading that you didn’t have any kind of honeymoon period. A The first thing I did when I became (Bar Association) president was to get rid of the painting from the common room. Q That infamous painting. A The Geoffrey Proud. I had a very strong view about that: I took the view that women barristers had as much right to be comfortable in the Bar Common Room as the men. And if there was a painting there that made them uncomfortable and caused them not to come, then it should be removed. I got a lot of flak in relation to it – I was accused of being a self-imposed censor – I got a number of abusive letters, mainly from people who had contributed to the cost of the painting. Roddy Meagher resigned from the Bar Association but ultimately rejoined. Q Wasn’t it his painting? It sat in his chambers afterwards, didn’t it? A No, he organised the money to buy the painting, and he picked the painting. It’s not even supposed to be a very good Geoffrey Proud painting, so some people who know these things say. There’s various interpretations of it, but a lot of people took the view – Q That it was offensive. A That it gave an impression of a woman masturbating. Today you wouldn’t shrug your shoulders at it. Janet Coombs had been advocating to get rid of the painting for years. Every Bar Council – 24

controlled by men, of course – said no, it stays. So when I came, I got rid of it. It went to an art exhibition and eventually it came back and was put in the Chief Executive’s office, until Rick Burbage took it and put it in his chambers and it’s still there, I’m told. Q So, a difficult time. A It was a hell on earth for two years. Two years in those days. I was running a very long case in front of Justice Hodgson at the same time. It was a terrible time. Q Hard on your family. A It was very hard on the family and hard on me. It was one crisis after another. And the media used to ring you at half past six every morning and drive you nuts. Q The Bar Association used to be very reticent about dealing with the media. That’s gradually changed. Were you instrumental in any way in changing their approach? A To a point. The (former) Chief Executive – Q Babette Smith. A She knew how to handle the media and gave me some advice how to do it. You had to be very careful what you said, of course – you never wanted to make it interesting for them. But I never refused to talk to the media, I just got annoyed when they rang at half past six in the morning… I had a run-in with Alan Jones. Q Oh yes? A I’ve forgotten what it was about, but he had defamed me. There’s no question about it: I got hold (of the transcript) and took it to Tom Hughes (QC) and he agreed. After his show was over, Jones rang me. I took the call and said, “Yes?” He said, “I said some things about you this morning that I don’t think are right”. I said, “Yes, that’s so – I’ve taken some advice on the matter”. He said, “If I’ve said something wrong, I’m always ready to apologise”. I said, “Yes”. He said, “I’ll apologise on tomorrow morning’s show”. I said, “Alright, I’ll listen.” He did apologise: it was a mealy-mouthed apology, at half past 5 in the morning. I spoke to Tom and he said “Mate, forget it”. Q Really? A No-one would take any notice of it. As a litigator, the last thing I wanted was to involve myself in litigation. (Alan Jones) had to step back and that was a good enough victory for me. Q What was he criticising you about? A I can’t remember what it was about, but it was quite nasty.

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14. THE BAR IN THE 21ST CENTURY Q At the Australian Bar Association conference in 1994, you made a speech in which you said, “Those that criticise us are the first to seek us when they themselves are in trouble”. And yet the legal profession continues to be criticised. I wonder how you feel – A Where did you get this from? Q Researching about you. I was struck by this because it’s true – that they seek remedies from (those they criticise). A Well, the first thing they do is run to their lawyers. Q You mention Sir here, saying “The plain fact is that in contemporary society, people are not prepared to accept at face value what professional people tell them. That attitude coupled with the ostensible shortcomings of the legal system has generated a debate about the legal system which is quite fundamental in its reach. The virtues of an independent Bar are not as widely accepted as they used to be.” A Well…. it’s like anything else. The trouble with the Bar is that it has grown exponentially. When I started, there were 450 (barristers). Although there were a couple of bad eggs among them, you knew who everyone was – everyone kept an eye on each other, behaved themselves, in effect. When you’ve got 2300, you can’t do that – you can’t keep that sort of control. When I addressed the new barristers, I said to them the most important things in their career, even more than their skills, is their reputation. “You’ve got to have a reputation for honesty, humility and sensitivity. Avoid being tricky or adopting a win-at-all-costs attitude”. It doesn’t matter who you talk to or how many times you say it: you’ll get a lot of people who’ll comply with that, and you’ll get some who don’t, usually at the back end of the bar, people who don’t have much work. There is no doubt that some abuses occur. Even in my day, there would be people who’d run cases, particularly criminal cases, far longer than they should, because they get paid a daily fee, which was anything but generous. That used to go on, to an extent. I don’t think it goes on any longer because the judges don’t let it. You’ve also got a huge range of competency from the most competent to the most stupid. Down at the back end, when these (barristers) run cases, they often murder them. Now, what do you do with these people? They’re qualified to have a practising certificate – just perhaps but they are. They’ve passed the Bar exams. The Bar exams have a 75% pass rate. What I mean by that is you’ve got to get 75% to pass, not 50% - so they must have passed it. But even so, many of them lack experience. It’s a hard profession in the sense that there is no substitute for experience, but in order to get experience, you’ve got to get briefed. If 26

you’re not being briefed, you don’t have the experience and you potentially muck things up. Q So, you’re really talking about the importance of emotional as well as intellectual skills. A It’s a combination of both. I’ve had it done to me twice – once by a very senior junior who actually became President of the Bar. He did a terrible thing to me when I’d only been at the Bar a few months. It was very hurtful and it backfired on him anyway. It was a tricky thing – you can’t be tricky. You’ve got to be honest, and intellectually honest too. It’s very important from the judiciary’s point of view is that the judges can trust what counsel is saying to you. This is the great trouble in the United States: the judges can’t trust what counsel tell them half the time because they’re incompetent – either the counsel or the judges are, or both. I gave a speech the other day on judicial appointments – the comparison between here and the United States. They generally elect their state judges over there, or judges have to stand for retention election. Theirs is a shocking, hopeless system; it’s broke. In a sense, we’re very fortunate – ours isn’t broke. Q They’ve never looked to us and thought they could benefit from imitating the Australian/ English system of judicial appointment? A Also, their appointments are very political, particularly in the Federal judiciary. They’re presidential appointments: people who are conservative or liberal as the case may be. This is what’s happening now, with filling the Kennedy vacancy. I talked about it in the speech I gave the other day. Fortunately, appointments to the federal or state courts here are rarely political. I can’t remember the last political one – but there was one that was regarded as very right-wing. The Howard Government appointed him. Sometimes they’re appointed on the erroneous assumption that they’ll be very conservative, and they turn out to be the opposite. Q Sometimes how they were as advocates doesn’t necessarily flow into through how they are as judges. A Politicians are very stupid if they make assumptions, because they don’t appreciate that judges are very conscious of their oath. Whether they agree with it or not, if that’s what the law requires them to do, they have to do it. Michael McHugh is a good example. Everyone thought Michael would be a left wing judge, but he turned out to be essentially a black-letter lawyer with a social conscience. Q Are you a black-letter lawyer? A Probably, I would think so. It depends on what you mean by “black- letter lawyer”. If you mean, did I follow precedent, yes I did. Sometimes you want to get around a precedent because you can’t see the justice of applying it. If you can find a legitimate way to distinguish it, then you do. I’ve certainly done that. You do look at the issues from the point of 27

view of “what is the right result or what should be the right result?” It doesn’t mean you start with a particular result and work backwards. You should work from the top down, rather than bottom up.

15. LIFE ON THE BENCH AND FARAH CONSTRUCTIONS V SAY-DEE Q You went to the bench in 2003. Your judgments, I read, were highly praised and mostly upheld. One of your decisions received short shrift from the High Court - Say-Dee Pty Ltd (Farah Constructions v Say-Dee 2007). What happened there? A Well, I went out on a limb because I applied the doctrine of unjust enrichment. I actually followed a Victorian case – I forget the name of the judge, it was a single judge decision, and I thought it was right. I applied the doctrine of unjust enrichment and found for whatever side I found for. That went up to the High Court and it came in for a shellacking. Dyson Heydon wrote the unanimous opinion of the (High) Court and he didn’t hold back. I saw Dyson shortly after it was handed down (I took Dyson’s seat on the Court of Appeal after he was promoted to the High Court), and said “Gosh, Dyson, talk about death by a thousand cuts!” He drew himself up to his full six-feet-six and said, “A man has to do what a man has to do.” “Thanks, Dyson”. They said “There was no such thing as a doctrine of unjust enrichment – we don’t have it here!” The thing that particularly got up their noses is that I decided the case on a point that was never taken below – the unjust enrichment point. But I had two of my colleagues agree with me, of course: one being Keith Mason and the other being Roger Giles, two very senior and respected judges. Keith wrote a book on the subject. Oh, no, Say-Dee will haunt me for the rest of my life. Q I perhaps shouldn’t have raised it. A A lot of people have raised it - you’ve got to laugh at it. You don’t take these things seriously, otherwise you’d shoot yourself. I’ve had a couple of matters reversed: the IVF case – I was reversed in that one on a 4:1 majority. (Justice) Gaegeler agreed with me and he was definitely right. That was an interesting case. I think there were a couple of others where I was reversed. Most of them, they just don’t grant special leave. Q What did you enjoy most about being on the bench? A I enjoyed the intellectual side of it. I enjoyed the idea that I could write a judgment in peace without being interrupted all the time. One thing about being a judge is you go into your room, you shut that door and no-one goes near you. Occasionally a colleague will come in, but rarely. The other thing was, I went on the bench at a time when there were some really great people on the Court of Appeal. There were two in particular, David Ipp and Simon Sheller. We used to get together 28

from time to time. Those two had a great sense of humour. David was at the other end of the corridor and when he wanted to talk – you could hear him pounding down the corridor – this big booming voice, when he was upset about someone not writing judgments quick enough. Simon was good value, too. The three of us had a lot of fun together and I was very sorry when first Simon and then David retired from the Court to go on ICAC. Q Not many (retired counsel and judges) I’ve interviewed talk about humour. I’m surprised. A Oh, you must have humour. Q Do you think humour is what made everything possible for you in terms of leavening your workload? A It was a very constant workload. I didn’t dissent a great deal. If I wrote something and people disagreed with it, that was alright. Usually, with 90% of the cases you did in the Court of Appeal, there was unanimity by the time the argument was finished. Then someone would write a draft judgment and if you agreed with it, you did. I wasn’t of the school that took the view you had to write a judgment in every case (the Heydon school), even if you agreed with the primary (first) judgment. Some people take the view they’ve got to write their own view on every matter. I think that’s a waste of resources, just to say the same things in different words, to prove that you’ve thought about the case. Some do it - they put a big load on their shoulders in doing so. Q Murray Gleeson when he was NSW Supreme Court Chief Justice tried to streamline the courts’ case load. Court case loads are always a topic of concern. A The cases are getting on pretty quickly these days. Q It’s improved? A The Court of Appeal case load has dropped off, so I am told, because there’s not so many common law cases, because of caps on damages and so forth. That took a lot of work away. The majority of appeals when I was active came from the District Court – damages cases. A lot fewer cases seem to be litigated now. In fact, you’ve got Court of Appeal judges now spending half their time sitting in equity trials, because there’s not enough work to keep them hearing appeals.

16. THOUGHTS ON RETIREMENT Q You said before that you were a reluctant retiree - you did return as an acting judge. A Straightaway. 29

Q That was doing a “Ken Handley”, wasn’t it? I talked to Ken Handley about “the Ken Handley amendment” (to the judicial retirement age). A 75 to 77 – they say it’s going up to 78. The permanent retiring age is going up from 72 – 75. Q That’s a good thing? A Yes. Two things. Most people still have their intellectual capacity by virtue of the fact they’ve been using their brains all those years and they’re still working. After 75, it’s a year by year assessment. The High Court and Federal Court judges’ (retirement age) being 70 is far too low – they went from the sublime to the ridiculous, from life tenure to 70 which is too young, particularly for the High Court with the sort of intellects that you find there. That’s a shame. Even in America, at least in the state courts, they all have retiring ages. They’re usually about 70 to 75 (in that range), but in the Federal judiciary they still have life tenure, which gives rise to some problems. If you take the situation with (President) Trump, if he gets another term, he gets to not only push the court to the right, with his current nominations, but with another couple of potential retirements looming…. One’s (Ruth Bader) Ginsberg – the other is (Stephen) Breyer. Both liberals. Q (Ruth Bader Ginsburg) is pretty inspiring. A She is. She’s 85. Q She does a lot of exercise. A She’s beaten cancer twice in 1999 and 2009 – she lost her husband in 2010. She’s only a little thing but gee, she’s very smart and is now the court’s dissenter. Q I think she wants to stay in there and outlast Trump. A I originally thought she wanted to retire. But she now says that she wants to stay on until she turns 90. The truth is, she wants to outlast Trump. Q That’s right. A She hates him and she has said that publicly. She had to pull back on that because people were saying she would have to recuse herself in cases involving the administration team. She said, “I shouldn’t have said that, but that’s what I feel!” She would be joining a long queue. Q You’re practising as an arbitrator. Are you doing much arbitration? Do you enjoy it?

A I don’t mind it but I’m not doing much more because I don’t have a staff and I don’t want to set up chambers – I’m dependant for my typing on my former associate to type it, which I pay her for, of course. It’s not 30

very satisfactory. I did an expert determination recently which was quite fun, I enjoyed that, but again it’s the typing problem. Whereas with mediations, they’re on and over in a day. You don’t have to write anything. Q Mediation is more in tune with your temperament? A It can be frustrating, if one party’s holding out. Q I remember Sir Laurence Street telling me that with mediation, he looked for the “golden thread” that connects people. Finding common ground - “that’s the goal of mediation.” A It is. It’s not always easy to find, though. Well, Sir Laurence – his technique was to bash heads and keep at it until everyone dropped from exhaustion. I don’t agree with that. Q A form of attrition. How do you do it? A I put a time limit on it and say “6 o’clock and that’s it”. If we haven’t got there by 6 o’clock, we’re not going to get there. It concentrates their minds much more quickly. Anyway, I’m not running after (arbitration) work – if it comes my way, fine, if it doesn’t – it doesn’t. Q So looking back, Murray, do you have any concluding words to pass on to people at the Bar? A I think the Bar’s a wonderful profession. One of the great things about it is that you’re your own boss, which means that you can come and go as you please. One of the things I found, particularly in my senior years, if I had a case and it settled, it meant I could go and take my wife out for lunch or dinner or both. The Bar has its challenges, but they are challenges worth pursuing. Provided your conscience is clear as to the way you’re conducting yourself and your cases, it is very rewarding – not just financially, but emotionally and intellectually. Arguing a case in the appellate court or even argument before a single judge - advocacy as Sir Anthony Mason said, is the art of persuasion. You get a great kick persuading someone to your client’s point of view. It’s very fulfilling and you’re providing a community services. The independence of the profession is as important as the independence of the judiciary. That is critical – you must be able to stand up, hold your head high and say, “I am independent of authority, except that of the court”. If you can do that, you’ll have a wonderful career. Q Murray Tobias, it’s been a pleasure listening to and speaking with you. Thank you very much. A Thank you.

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