This is an interview with Dean Clayton QC by Lindy McNamara. The date is 27th May 2016.
Dean, can we start with your full name and date of birth?
Dean Ernest Clayton, 17th April 1943.
Where were you born?
I was born in Hindmarsh.
And your parents’ names?
Ern and Rini.
And you lived in the western suburbs most of your life?
Yes, I went to the Allenby Gardens Primary School and then to Adelaide Boys’ High School.
What did your parents do?
My mother was a housewife, as most mothers were in those days. My father was manager in a company, Whittle Nettle.
What are your memories of your childhood?
The Allenby Gardens school was a good school to go and good football team. We had good teachers. I probably got into more trouble than I should.
And going into high school?
I was a very lazy student. I had other interests and didn’t study as hard as I might have. I never studied my Latin vocabulary as the teachers would have wanted me to; struggled through school. We had good teachers and it was a good school - in those days good sporting teams, good at everything.
What sort of sports were you playing at high school?
I was a rower, I played football and I also played cricket.
The decision to study law, how did that come about?
By default really. I couldn't think of anything else to study. At that time to be admitted to the law school you needed to pass Matric Latin, which I fluked somehow. And the day after I passed Latin they abolished the requirement. So half the class I was in would never have been lawyers apart from that change.
You went to Adelaide University?
Adelaide University, yes.
Can you give me some stories from uni days? Was it an enjoyable experience for you, did you enjoy studying the law and all the extracurricular activities that you might have been involved with?
Oh yes. I started in 1961. There were 65 first year law students, which was the largest year ever, much larger than the previous years. The abolition of the Latin prerequisite may have had something to do with that. And successive years were even greater.
The law school was a fairly laid back place. There weren't many students who spent most of the time in the library. Most of us didn’t know that there was an honours degree if you studied hard. I think most of us thought that any mark beyond the minimum pass mark was wasted effort; but we used to spend most of the days of law school hanging around the library. Once a week a group would go up to the pub, The Richmond, and have a couple of beers. There was a group that used to go to the midweek races in the country, and there was a group that played cards almost 24 hours a day.
It was a very social group.
It was. There would have been six people who were conscientious students.
Have you maintained contact with some of the students you went through law school with?
Oh yes, we celebrated our 50 year admission to the court on 1st March and in the group there was John Treloar and Michael Abbott, Michael Birchall and a group of us that still see each other regularly.
And of course you were saying before that you were involved in a lot of sporting activities during your uni days.
I spent a lot of time with the boat club. I was the Captain of boats twice, and I rowed in three intervarsity races. So I had a lot to do with the university boat club and I've had a lot to do with rowing since then. I've coached crews. I was the President of the South Australian Rowing Association and I was the President of the Australian Amateur Rowing Council once. So I've had a lot to do with rowing.
Why did you enjoy rowing so much?
It’s a good sport, it's good exercise. Most of the people who row are good people; if you're not a good person you get chucked out fairly quickly. Rowing is good for your children. I coached a number of school crews, for over 15 different crews. What rowing does is teach students to prioritise their time. It's a very demanding sport. Students learn that they have to devote so much to rowing, so much to their studies and also set aside a certain amount for recreation, they don't squander time.
Perhaps the time management skills that you learnt from rowing were to become later very useful in your career as a lawyer.
Well, time management is important. You learn that in a firm of solicitors.
You were admitted in 1966, so 50 years ago. Who did you do your articles with?
When it came time to do articles I really didn’t know any lawyers so I wasn’t quite sure what to do. I was going to ask my father to speak to a person he knew, but Neil Lowry came down to the law school looking for an articled clerk and I managed to get a position with him. When I look back on the profession in those days, the profession thought they had an obligation to find articles for every student, and they did. And also find a job for every new admittee. Now I suspect about 25 percent of people find employment quickly and the rest have a big problem.
Back when you were first admitted you would have known just about everyone within the legal profession, it was still small enough that you knew your contemporaries?
Yes that’s right. You knew everybody in the profession; there used to be functions. The judges used to have a party every year to which they invited the whole profession and the new admittees used to hold a party; I think our year was the last year to do it. We put in 20 pounds each and that paid for the advertising and for our admission to get into the party and I think we received a refund of about a pound at the end of it. So usually two or three hundred people would attend a function like that. Often they were held in the Town Hall or John Martin’s Buttery, which was sort of a restaurant.
After articles you then went to work. Did you stay at the same firm or moved firms?
No, I had a job as associate to David Hogarth who was a Supreme Court judge. He was a brave man; he'd been a prisoner of the Germans during the Second War. Associates were employed for one year and the judge would kick the associate out at the end of 12 months. At that time there were six Supreme Court judges, there was no District Court, there was no Family Court. So the six Supreme Court judges heard everything except what the Magistrates heard. And as I said there were six judges, there were seven court reporters, they were all men and they used to take down the transcript on a typewriter. They'd have carbon paper, so they might have to do five copies for a number of parties to the case. They used to interleave the carbon between sheets of typing paper and put each bundle together with a pin. And at the end of each page they'd call out “stop” while they replaced the paper in the machine.
I'm assuming the Supreme Court judges were hearing just about everything, but the cases were a lot quicker than they are these days?
A two-day case was regarded as a long case. People were a lot more efficient than they are now. There were no photograph machines, we'll there was a photographing machine but it was a wet process and the copy was like the negative on a film from a camera. And the girls in the office had to run the process through a tray of liquid and then hang the sheets of paper up on a line with a peg.
Like a dark room situation?
Yes, for it to dry out.
Technology has certainly changed.
In the mid-1960s the Lands Titles Office obtained a Xerox machine and allowed people to make copies of Certificates of Title at a shilling a page.
That would have very much modernised things in the court process.
Well the photocopying machine has a lot to answer for in the legal profession. In the 1960s a brief would normally be contained in one of those spring-back folders, now they turn up at the court with a trolley with 10 or 20 Lever Arch folders all manufactured by the photocopying machine.
At a cost.
At a cost. There were copying machines in Adelaide that earn more money than Queen’s Counsel.
What did you learn from David, was he a good mentor for you?
He was very good but you learn most just by sitting in court and watching, and you meet the profession that way. At the end of my time at the court I had at least three very good job offers.
Which one did you select?
I went to work with a firm called Matheson Griffin and Hume. Rod Matheson I’d seen in the court before Mr Justice Hogarth, and Trevor Griffin later became the Attorney-General and Neil Hume was the brother of a friend of mine. That was a good little firm.
Dealing in mainly what area?
A general practice, but insurance was the backbone of many firms, motor accident claims, insurance claims and the like. Trevor Griffin had a tax practice. He had a little practice over at Kangaroo Island where he looked after farmers. Trevor was the protégé of Howard Zelling and that firm was really a successor to a firm Zelling Matheson and Co. I’d been there for about six months and Dick Blackburn who had been a partner in Finlaysons was appointed a judge in the Northern Territory and Rod Matheson was invited to take his place in Finlaysons, which he wanted to do. Finlaysons offered to take over or to take on the whole firm of Matheson, Griffin and Hume. Trevor and Jack decided to do their own thing and they didn’t come, but Rod and I went to Finlaysons. It was called Finlayson & Co in those days.
You were still quite a new lawyer at that stage - what sort of work were you cutting your teeth on?
We really did everything. I never did probates or succession duties. I just made a decision that I would never do that. I used to do conveyancing, drew agreements, drew Wills; basically I was a litigator, go to court. We used to do a little bit of criminal in those days. The Law Society had a poor person legal assistance scheme and most practitioners would help out with the scheme. How it worked was you did the case and then sent off a request to the Law Society with your costs to be certified. The Law Society would advise the costs were certified at say $100 and then about two years later you'd receive a dividend back from the fund where that case was in but you'd get about 20 cents in the dollar.
So you weren't holding your breath out for the proceeds from that?
No. The overheads to the practice might have been 30 cents so practitioners made a loss on every case they handled.
It was pro bono work basically?
Yes. There was no Legal Services Commission. The Law Society has never been properly recognised for what it did at that time. I served on one of the sub-committees that administered the scheme for a while. Angus Maitland who was the secretary of the Law Society, or the equivalent of the chief executive officer I suppose, he used to come around to the office on Friday afternoons with a sugar bag of files and we’d take them home for the weekend and read them and then have a meeting at lunchtime on Monday. We’d go to the Law Society and we’d sit down for a meeting around a table not as flash as this, a Law Society table. And the Law Society used to provide the kettle, tea, coffee and Law Society sandwiches. I assume the Law Society sandwiches are still the same.
Probably not much better. And you would determine which cases qualified?
Oh yes, we would assess the cases and decide whether assistance should be granted or not. Sometimes we’d get involved in the assessment of the fees. But committees were very busy.
So this would be back in the ‘70s and ‘80s?
1960s, 1970s. When the Legal Services Commission started the scheme was just disbanded.
There was no need for it then?
It was the Australian Legal Aid office for a while and then the Legal Services Commission was established in the 1970s.
So that was your first real involvement, besides paying your fees with the Law Society?
When we were admitted we were advised to do three things. Become enrolled on the High Court role because that gave you the right to practise in the federal jurisdiction. Write to the chief justice to be appointed as a commissioner for taking affidavits. And to join the Law Society.
The benefit of being a commissioner is that you could charge for taking an oath. In a building like the Epworth Building where Finlaysons were - and there were a number of other firms, Ward Mollison, Litchfield Law and Fisher Jeffries, Thomas Bonner and others - the only practitioner from firm A would go to firm B to swear his affidavits and the other person would reciprocate. So young practitioners managed to buy the petrol for their cars.
Their commissioner’s fees.
The Epworth Building was -
That would have been a hub for the legal profession by the sounds of it.
It was. One interesting person was on the ground floor Dr H Norman Tucker. Dr Tucker was about six foot six and he had doctorates from Adelaide University and one of the English universities. He had a single room, and he never turned the light on to save electricity. He sat at one of those Cutler rolltop desks with an imperial typewriter in front of him, he used to type his own documents. I think he used to do probates with his two doctorates.
Quite a character.
Well, a different person. He was always very eager to take an affidavit and when he took somebody’s say for an affidavit he would charge as a notary because notaries public charged more than commissioners could.
He had the system worked out.
How was your career going then with Finlaysons - or Finlayson & Co as it was called?
When Rod Matheson and I went to Finlaysons at the start of 1967, we were the only lawyers in the firm that did litigation. Finlaysons agreed to let Rod continue with criminal work and family work; previously they thought that was a bit smelly. In fact Finlayson & Co were very particular about their clients. For example they acted for a bank which had an insurance company as a subsidiary and they just refused to do the insurance work. And all of that was fought over by most of the other firms in Adelaide.
So they were very selective on the work they took on?
It was mainly a commercial firm. At that time there were a number of public companies within offices in Adelaide and that was the best work for the legal profession.
It's a tragedy what's happened, the firms that are no longer in South Australia; Elders GM, Fauldings, Bank of Adelaide, Adelaide Steamship Company. When you look at the newspaper now, the three biggest companies in South Australia are Santos, first; second Diageo, which is just an investment company, they don't contribute anything to the economy; and then Adelaide Brighton, which is just within the top 100 Australian companies.
It's a sad state for this State. So you got involved with commercial work?
Only as a litigator. But there were applications that had to be made, applications by companies to reduce their capital and things like that. And insolvency involved commercial cases largely. By the time I left Finlaysons there was quite a large litigation practice.
And you enjoyed the work?
Oh yes, it was good work, it was the best work.
In what way?
Well, their clients could always pay; the cases were interesting; and you always had sufficient support to do the case properly.
Can you recall some of the interesting cases that got your grey matter working at the time and that you enjoyed?
There were dozens of them. Amongst other things, Finlaysons had a maritime practice and they acted for all of the P&I associations, they are the protection and indemnity clubs which insure the ship owners. So Finlaysons, in effect, acted for the insurer of every ship that came to port and the port was quite busy in those days.
There were a number of interesting shipping cases. Whenever a ship spilt oil in the port there was a big inquiry as to what had happened. If you just pour a cup full of oil onto the water it spreads everywhere, so if a ship spilled a gallon or a hundred gallons of oil then there would be an inquiry.
There was a ship called the [inaudible] Cage, it was an old liberty ship from the war. They were ships that were put together quickly and didn’t have any real skeleton. Steel plates were just welded together without a frame. And they loaded the ship over in Thevenard, putting wheat into the bow and the stern. They had nothing in the centre of the ship and she just broke in two. So that was on the bottom for a long time.
Quite often ships ran into the jetty at Wallaroo. One, the [inaudible], a Chinese ship owned by COSCO, China Ocean Shipping Company, ran into the jetty at Wallaroo, and the conveyor system came down like a set of dominos. So the South Australian government sued China Ocean Shipping Company; that case when to the High Court, an interesting point. I got to know the Chinese people very well. We used to have dinner with them in a Chinese restaurant once a week. They came over and lived in South Australia for several months while the case was on. We would go to meetings around the table like this with the Crown. The Crown solicitor was Graham Prior and his offsider was Brad Selway. The Chinese were very strict, they were protocol and the Chinese kept instructing us ‘we want honourable settlement’. The government wanted x million and they offered $200 or something. Eventually it was settled after it had been to the High Court.
To their satisfaction?
Oh yes. We’d go to these conferences and in their attempt to be polite the Chinese man used to refer to Mr Graham Prior, the Crown Solicitor, as Mr Clown Plyor.
But there were many occasions when ships had gone into jetties particularly at Wallaroo. I once was involved in a claim by the owner of a shipping boat, a prawn trawling boat, which had been tied up on the Wallaroo jetty. Prawn boats have big booms that they extend out to tow their nets and when they're on the wharf the beams are stored in an upright position. Well a train went along the Wallaroo jetty and a speed boat had caused some wash so the fishing boat was rocking. There was a collision between the train and the fishing boat. So the owner of the boat sued the state government which was the person in charge of the jetty and the commonwealth who was responsible for the train. You can't imagine a worse nightmare than trying two companies.
The case was before Peter Johnson and after a couple of weeks he called us into his chambers and said people accuse me of being slow to make up my mind but in this case I thought about it carefully and I think the proper result would be the ship owner accepts contribution of one third, the state one third and the commonwealth one third. Go away and think about it. Well, the commonwealth, the state and Crown still couldn't take the hint so we ran the case to the end. And of course the result was one third, one third, one third.
So that would disappoint you now to see so few ships coming into the ports here, you would have been involved at the time when it was very busy.
Yes. I attended the inaugural meeting of the Maritime Law Association of Australia and New Zealand in Melbourne in 1978. And then when I came back to Adelaide we started a branch in South Australia - we got Phil Rice to be the Chairman and roped in everybody who had a remote interest in shipping. Sadly the South Australian branch has just fallen by the wayside. After I went to the court I stopped attending and the person who was appointed as Chairman never took it on. But the national association still goes and it's a very strong organisation.
What was the decision to leave Finlaysons? Was it in ’88 that you moved to the Independent Bar?
In 1966 there was no Independent Bar apart from Chris Legoe and Robin Millhouse who had just started with Howard Zelling but Howard was only at the Bar for a very short time before he was appointed. All of the Queen’s Counsel were in firms; all the court work was starting within firms. Then the Bar Chambers started to grow. There was Legoe and Millhouse and then other people joined them and they got up to about six and they doubled the size of the pool and it went to 12. Then Jeffcott Chambers was opened and they were another 12, and so that was doubled to 24. Other chambers started forming. The Bar started growing and in the 1980s Chief Justice King decided that if you wanted to be a Queen’s Counsel you had to be in a separate bar.
His reasoning for that was?
Because of independence. His decision was opposed by most of the profession at the time because it was against their vested interests. The big firms liked to have a silk in the firm. And three of my partners left Finlayson's.
They had to go out of the firm?
Jack Astley retired, Rod Matheson went straight to the court, he was never at the independent Bar and Bruce Debelle had to leave the firm before he could take silk.
Did you support that?
I didn’t at the time but I do now. I think independence is very important. And what an independent bar like we have now can do is to assist small practitioners that the big firms don’t need the assistance of silks. A silk sole practitioner can take on anybody for a client with modest means. And people at the independent Bar can brief all sorts of people.
It makes them more accessible to the wider public?
So you joined Bar Chambers?
I went to Bar Chambers in 1988.
Who was there with you at that time?
The head of Chambers was Tim Williams. There was Michael David, Andrew Martin, Michael Birchall, Martin [inaudible], Rob Kemp, Kevin Duggan, David Angel.
So what did you enjoy about being your own boss to some extent?
It's a different life from being in a firm. I was the most senior of the litigation partners at Finlaysons when I left, and I had 100 people to do things for me. But as I said at the very outset, time management was important. Finlaysons like all other firms require practitioners to make so many work in progress units every day, to account for a certain number of hours. It might have been five hours a day. And so no time was squandered.
When I went to Bar Chambers it was completely different. When I went into my room and started working I could hear laughter and I eventually learnt that everybody was in the kitchen. I was up on the first floor. The kitchen was on the ground floor and unless people were in court they would go into the kitchen at the start of the day and have a cup of coffee or a cup of tea. If they weren't in court some might stay there all day and tell jokes and talk about cases. It was a changing community. One person would come and another would go so there was something happening in the kitchen all day.
So quite a bit of camaraderie between the different people there?
It is. At Finlaysons I always enjoyed the support of my partners. I thought I was privileged having support. At the Bar, the members of chambers can be opponents in cases, but in fact the support they give each other in chambers is greater than the support people give each other within a firm. Because being sole practitioners they're quite vulnerable, they're conscious of that and so they look after each other.
That’s something that outsiders might not realise about the legal profession. Can you recall some of the cases that you were working on?
There were just so many of them.
Any that stand out in your mind, some that caused you to lose sleep at the time?
A lot do. I was involved in a number of cases that went for months or years.
I think the worst case that I was involved in was the Stirling bushfires. The ratepayers or people whose properties were burnt sued the Stirling Council and the company FS Evans and Sons, the people who owned the dump from which the fire escaped.
There had been one case in which Justice Prior held that the council was responsible. And then another case was listed, a case called Casley-Smith. The council decided to contest liability in that case as well before Justice Olsen, which they did. The council and its legal team fell out with Justice Olsen. And at the end of the liability trial, counsel David Angel and Nicholas Swan had just had enough. They weren't prepared to go on with the assessment of damages, so I was briefed to appear with Darryl Trim on the hearing of this case. Well I could talk to you about that case for an hour, in fact I thought of writing a book which I would call [inaudible].
In the course of that case our instructing solicitor Ann Robinson was threatened with contempt and the newspaper said that she was likely to go to jail and her little kids at school saw that and their friends saw that. There was no substance to it, but the case got out of control because the ratepayers had ever increasing rates to finance the claims that were being made and the legal costs.
So it was very emotive. Everyone had a vested interest in it to some extent.
They did. Drew and I and Danny were hated by our client and hated by the judge and hated by our opponents.
How did that sit with you? Was it like water off a duck’s back?
It has to be, doesn’t it? It has to be.
That went on for a long time?
Years and years. I could tell you a dozen funny stories about that case.
And then there was the Duke litigation, the case before Justice Perry. There were two Duke cases, the second one was before Tim Mulligan but his first case was before Justice Perry. There was Tom Grey, Jonathon Wills and Dick Whitington for the plaintiffs. And there was the defendant with Bruce Lander and Tony [Bizanco?] and then there was a third party and our legal was a man called Alex Shand who came from Sydney. There was another junior Tony Maher from Sydney and myself. That case went for 18 months, I suppose, before it was eventually settled. I don’t think they have cases like that anymore.
So you had to have a level of perseverance when you were involved in those cases?
You knew that it wasn’t going to happen overnight.
So in 1992 you were made Queen’s Counsel?
Was it something that you were expecting at the time?
Well you had to apply. I’d applied a year earlier and it was knocked back. It's customary, not many people get it first time they apply. I felt pretty good about it - I was a barrister and I wanted to be a Queen’s Counsel.
Did you ever think all those years back in law school that that’s the direction your career would take?
No, I never contemplated anything like that.
Probably a lot of people will recall your involvement with the Motorola inquiry. Would you like to talk a bit about your involvement? Obviously the outcome was that eventually Premier John Olsen tended his resignation.
They'd had one inquiry that was called the Software Centre Inquiry and parliament wasn’t happy with that for various reasons. Parliament passed a resolution that independent counsel be retained to conduct another inquiry.
An inquiry into the inquiry?
Well an inquiry into various matters. The Attorney asked if I would be prepared to have my name put forward. I said I was and so the executive appointed me. It wasn’t a royal commission because they thought that if I made adverse findings the premier might have to resign, so they passed a separate Act giving the inquiry all the powers of a royal commission.
We conducted the inquiry, and they had a public servants to assist me. We had the staff we needed to start from nothing. We had to find premises and staff, design a letterhead and all those things, and to find a name for the inquiry. There were all sorts of possibilities but we decided to call it the Second Software Centre Inquiry.
How long did that inquiry take?
It ended up taking months and months. The reason why it took so long is the Premier could never find time to come down and see us. The inquiry wasn’t just concerned with the Premier, it was concerned with some other public servants, his staff and other people, a man called John Cambridge whom I saw wrote a letter to the editor a few days ago. But the premier’s staff thought that they were untouchable.
And that wasn’t the case?
They'd ruffled a few feathers all around town.
Was there a lot of talk at the time? Adelaide is a very small town in some respects and circles. Was there a lot of anticipation regarding what your findings were going to be?
There were always people who criticised politicians, so there was a lot of that.
And of course your findings, there were adverse findings - how did that sit with you the night before you knew that your report was going to be released?
I knew that it was going to create problems for people. I don’t think that I would particularly criticise John Olsen because while he did deceive parliament, he never derived any personal benefit out of what he was doing, he thought he was doing the right thing by the State. Some of the other people who were involved in the inquiry weren't quite the same. He just wouldn't come and see us, and so while we were waiting for him to come, it was a bit like me putting you off - we were just sitting, reading, thinking and writing and just garnishing the report.
You just had to wait?
And then when he came we put it all together within a week or so.
Was there a lot of backlash towards you after the report was released?
Some people think I'm a Bolshevik with dyed in the wool Liberal supporters. I’ve received a few dirty looks from certain quarters. Parliament resolved as I said that independent counsel should be employed to conduct an inquiry, and they were entitled to an independent view.
John Olsen he was quite critical of your report and did a very detailed reply to that.
Oh yes. He still is I think.
Have you had any dealings with him since?
No. He was put up for membership of a club that I belong to. His proposer rang and asked if I would oppose the nomination but my response was that I bore him no animosity. The proposer said nor he you. That’s the closest contact that I’ve had with him. Even so, some of the things he says are just not true. For example he says that he was denied natural justice. Well the fact is we gave him a copy of the draft report before it was published and asked him to comment. But what’s telling is he never took proceedings to try and correct anything.
Does it ever weigh heavy on your mind your involvement with the report, or you walked away and said I finished that job?
You have to do that. At the Bar if you let cases concern you then you wouldn't survive. That’s the same as a judge. You finish the case and move on.
Moving on to your appointment to the District Court, that was 2003. How did that all eventuate? was it an easy decision for you to leave the Bar to go to the Bench?
I was the Head of Bar Chambers. I used to say to the others that being a barrister was an honourable profession and that I have more respect for barristers than I do for most judges, I think that’s still the case. And I thought I’d stay at the Bar. I’d been offered an appointment a few years earlier and I just wasn’t interested at all. But I had a couple of problems with my health and I was just, I don’t know, run down I guess. The Attorney rang me and so in a moment of feeble mindedness I said I’d be happy for my name to be put forward. As I've told you, most of the work I did was commercial work and civil work, and at the District Court 80 or 85 percent of the work might be criminal. And the judges wore purple dressing gowns - a purple set of robes - and I’d never actually seen one of those sets of purple robes until I had to put one on.
It was a bit of a shock?
I’d seen enough criminal work when I was younger and I’d learnt a lot by sitting in the kitchen at Bar Chambers just hearing the criminal lawyers talk and so it was never any problem for me.
Most of the work is crime; of the crime, one third would be ancient kiddy sex, those terrible cases with fathers and step-fathers abusing children. Another third would be drugs, and the other third would just be breaking and entering and assaults. So it was completely different from what I was used to.
And much quicker cases than perhaps you were used to in the commercial field?
They were smaller cases than the big cases like some of the big commercial cases.
Did you find it interesting being on the Bench?
Oh yes, everything is interesting. When you're dealing with people one thing you learn is that most people in the dock aren't there by choice, it's just circumstances that lead to them being in the dock. There are some nasty pasties who deserve to be locked up. Most of the people in the dock who were sentenced were ordinary people who had some bad luck in their lives.
When you had to sentence someone to prison, how did that sit with you?
Well, you'd have to do it and so you do it. You know that the Court of Appeal is looking over your shoulder and if you don’t get it right they will tell you.
What qualities do you think you have as a judge? What qualities do you like to bring to the table?
I think patience is very important, trying to be fair; whether I've been patient and fair I couldn’t say. And then being prompt with your decision. Some decisions wait for years. The Chief Justice or the chief judge should say to the judge, ‘Look, you go away and sit in your room and write that judgement, you're not going to hear any more cases until you've done it’. Literally years pass by before some decisions are handed down.
It must be terrible for the people involved to have that hanging over their head for that length of time.
So that took you through to 2013, and then you retired?
Turned 70 years of age, so you're declared statutory senile.
But you still kept your hand in? Because you said before you've been working as required as an auxiliary judge, is that correct?
Yes. I'm an auxiliary District Court judge. David Smith is one now. There are about eight or 10 Supreme Court auxiliaries and 20 auxiliary magistrates. They can just call on the auxiliaries when they're short. So in three years I've done six or eight cases I suppose.
Does it concern you the length of time that people wait to have their cases heard?
It's an absolute disgrace.
Is there a solution?
The efficiency of the court needs to be improved and they need to appoint more judges. What happens with the criminal cases is that they over-list, so they might list 10 cases to start next Monday and then next Monday there are only six judges available so four cases are left hanging. And if one of the six disappears for some reason then the first of the other four ones is brought forward and the other three go back into the system. They don’t receive any priority and they might not get a hearing date until the middle of next year. So people wait for years to get criminal cases heard. And while the case is outstanding their lives are on hold.
The system is bogged down with cases, which just clutter things up. And for the Bar it's terrible because a lot of the young barristers who do Legal Aid crime are young people with families and mortgages. They’ve probably borrowed money for their house and borrowed money for their chambers and they're relying on a case in court next week to earn some money. Sometimes they go for months on end without earning any money at all.
It's a difficult situation to find a solution for, because having more judges or more magistrates you still have to pay them somehow as well.
Oh yes, but the cases are there. The community has an obligation to see that those cases are decided. It's the same with civil cases; the community has an obligation to resolve civil cases. If the community doesn’t provide a court system to resolve cases then people can resort to throwing bricks at each other and shooting each other and it just doesn’t work. It's very important in a civilised society to resolve disputes between people and victims.
You've done extensive work with the Law Society, which I guess culminated with being President in 1994-95?
You were saying before that you were involved in the Legal Aid side of things.
The assistance scheme.
Then you also became involved with the Litigation Assistance Fund in ’92.
And you're an inaugural member of LawGuard, on the Professional Standards Committee and I think I read somewhere that you sat on the counsel disciplinary committee as well at some stage.
What are your memories of your involvement with the Law Society, particularly when you had your year as President?
In addition to those committees you mentioned, I really started LawCare with Barry Fitzgerald. I don’t know how LawCare goes now but from time to time practitioners had mental health problems and at least once a year there would be one who was suicidal.
And they would come to the Law Society seeking assistance in some form, or you would hear about that from other practitioners?
Both. Anyway Barry and I cranked up LawCare. Mary Walters had applied for a job, it might have been Director of Professional Standards or something. Anyway Barry saw there were two half jobs, LawCare and Litigation Assistance Fund so he put those together and made a position for Mary. I imagine LawCare just trundles along helping the few people that’s there if people are lost.
And it's important for a Society to provide that service?
Oh yes. There was one person whom we couldn’t save, a country practitioner who knew that he was vulnerable but no matter what we did we were unable to help. A friend of mine, Doug Hay, took his own life; he was a practitioner in sole practice. We knew that he was in trouble and we tried, did everything but to no avail. He had bad health and financial problems, family problems, it's very hard.
Of course now they're saying that depression is significant with the young practitioners coming out.
With the older ones too, but definitely something that needs to be addressed.
If people aren't properly trained, they're not competent to do a lot of the work that lawyers have to do, and so if people are not competent they're under enormous stress. People have financial demands and unless their practice is profitable they would be under all sorts of stress. It's a very stressful occupation.
Did you see that too when you were at Bar Chambers? As you said before, people there are waiting for a case to be completed before their money comes to them. Did you find that you had associates there that were very stressed by that nature of the work?
I don’t know that anybody at Bar Chambers was ever vulnerable, they look after each other and the community helps people to cope with stress. And some people get behind with their chambers’ fees but after a few months they catch up again.
Do you think that's something that’s missing now because the profession is so much larger and that sense of community within the profession has dissipated to a certain extent?
Absolutely. I'm sure that there are people admitted now who have never met a practising lawyer. These kids go through the law school and do their practical legal training, and they come into contact with lawyers in that way, but they would never have shared a meal with a lawyer and had a drink with a lawyer, so those people need to cope. The practical legal training is not very good. The reason is that there are so many people coming through.
When you joined Bar Chambers you instigated the Bar Readers’ Course, that was one of your achievements there.
That’s right. I pushed for that and we established a course. Barry Fitzgerald and Marie Motra helped at the outset but we had to design a curriculum, and Nigel Wilson who was in Bar Chambers agreed to be the secretary of the committee. He went around Australia and looked at the courses in the other states. Barry told us that if we were going to have a course it needed accreditation, with his education background he was alert to that. So we put together the course and the other Bar Associations accepted it, and that means that the person who has been a Bar Reader in South Australia can now be admitted in any of the other states without having to do the course there.
I had an articled clerk a long time ago, Tom Blackburn, and he decided to move to Sydney to the Bar, he'd been admitted for a few years in South Australia. They made him do the reading course, then he was admitted. He might not have at the time but he now acknowledges it was one of the better things that’s happened to him. He's now a silk in Sydney.
So obviously the time he spent with you, your skills rubbed off on him.
He's a very interesting man Tom. His father was Sir Richard Blackburn, Dick Blackburn, of Finlaysons. Sir Richard was ultimately the Chief Justice in the ACT.
Throughout your career did you mentor younger practitioners along the way?
Oh yes. I had a lot of articled clerks and tried to help other people at the Bar.
Who was the mentor for you that you used to defer to when you needed some advice?
When I was in articles Neil Lowry was very helpful, then Rob Matheson.
Just touching on your year as President at the Law Society, were there any major issues during that time? Obviously, you and Barry were working closely on LawCare.
That was pretty easy really. It was just a matter of putting it together and advertising it, and it was up and running.
The insurance was controversial at that time. The committee who looked after the indemnity insurance used to go to London every year, usually about July when the test match was on at Ascot. Several of them would go, they had an apartment they used to rent in Kensington or somewhere. One year they came back and the chair of the committee said bad luck they're going to increase the premium by some enormous amount. Well Ross McComish who was at a firm called [inaudible] in the hills didn’t think that was right so he started agitating. The end result was that we put in place a little inquiry which we got Tim Andersen to chair and they wrote the report. They looked at the brokers and recommended that we engage another broker. Minette’s had been the brokers for years and years and they thought they had a life appointment. We called for tenders and interviewed a few brokers and we ended up appointing a firm called Willis Carew, who I think were predecessors of Gallaghers who do it now. The end result of that, which involved a lot of work, was that the premiums had been reined in, and ever since then the premiums have been much more reasonable.
That can be a very big expense, particularly for a sole practitioner.
It's still a big expense but it was completely out of control at this time. The profession have Ross McComish to thank for his agitation. He was an interesting person, I think he’s retired now. There used to be a complaints committee I think it was called and Margaret [inaudible] was the Director or the head person in the place. When she wrote, they had special letters which had red on the front. McComish used to write to Barry and he used to copy the Complaints Committee letters to convey his messages to Barry. Barry was probably the best thing that’s ever happened to the Law Society.
He was here before I was here, but he obviously had a huge impact and changed things, yes.
A very competent, and a very personable man.
Whereabouts is he now?
Over by Ballarat. They left Adelaide and went to Eagle Hawke just out of Bendigo, they had a B&B there. Then he moved to this other place, the name of which I can't remember.
He must be retired now though.
Well he's retired. He moved to Eagle Hawke and became the secretary manager of the Eagle Hawke Golf Club and on the Board of the local community bank.
So he wasn’t really retired, he kept keeping himself busy.
Always looking for something to do.
As for you, some outside interests - I was reading that you're a fearsome snow skier, would that be correct?
I was, I belonged to a club called Schuss which has lodges in Mount Buller, Thredbo and Falls Creek.
You didn’t mind going down the odd black run and going at speeds?
No. I used to spend several weeks each year at least with skis on. I’m sorry I can't do it, I probably could but -
Back might not feel too good afterwards.
They used to give people who were 60 years of age a free ticket and then there were so many of them they moved out to 65 and 70. But I think elderly people still get some discount. I'm missing out on that.
Golf is on hold at the moment but you're hoping one day perhaps to get back out there?
I’m working on that.
And family, you've got four children, is that right?
Married to Julia?
Julia, that’s right.
And other plans for retirement? I know you're still doing a bit of work.
We've got nine grandchildren, so spend a lot of time with them. We’re asked to collect them from school, they come and stay and that takes some time. My daughter is in Hobart so we like to go down there. We went down there a few weeks ago and drove around the whole island which we've never done before and a couple of places we've never been to.
And your legacy for the profession, what do you think people will remember you by?
I don't know, different things I think.
The personality? I think that rings true from some of the things I've been reading.
I don’t know.
Remains to be seen.
Is there anything else you'd like to talk about before we finish up?
Just generally all the difference between 1966 and 2016.
As I said, in 1966 the older practitioners looked after the new admittees and people got on. Now there are some people who are not trusted. Judges see arguments at the Bar table, barristers accusing each other of breaking undertakings. It's a different profession to what it was.
Can it get back to what it was?
Of course it can. It requires the Law Society and the Bar Association to take the lead.
Perhaps rein things in a little bit that have got out of hand?
And the judges have a role to play. It's terrible when you’ve got two people fighting like cat and dog at the Bar table.
As a judge what can you do?
You say just stop for a moment, we'll take it in turns. One of the things that we teach the Bar Readers is that if you're on your feet and your opponent stands to object you immediately hit the deck and let your opponent have his say. You know that the judge will give you your turn in due course. But when you see two people fighting over the lectern and they’re squabbling like politicians to see who can have their say, it's just appalling.
Maybe they’ve been watching too much courtroom television where they sensationalise everything?
I've heard cases with Queen’s Counsel on both sides and you can see them sitting there like kettles on the boil and then suddenly one pops up. It's unnecessary and they're just grandstanding for their clients. The Bar Readers’ Course is very important, it's now compulsory for people who want to join the Bar Association. The benefit of joining the Bar Association is that if you give the undertaking to practise only as a barrister, which you have to do, then the PI insurance is much cheaper. Etiquette can be taught. You can tell people if your opponent stands, hit the deck, certain things like that.
The etiquette needs to be followed, yes.
There are basic things that people don't know; to look at the judge, to look at the jury, to look at the witness, to engage with them. They bury themselves in their papers. Let’s hope the Bar Readers’ Course continues to improve that, it should help the standard of the Bar.
The demeanour of the people.
Thank you very much for chatting with me.