IDDRESS 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 Judge of the Court of Appeal considerable expense to the Hawthorn Town Hall, which had a of Victoria 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 Henry Bolte, 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 Victorian Bar 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 Daryl Dawson, 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 Australia 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 knight 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 Ninian Stephen. 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.