ORAL HISTORIES INTERVIEW
Honourable Bruce Debelle AO QC
By Lindy McNamara on 6 August 2014
This is an interview with The Honourable Bruce Debelle AO QC by Lindy McNamara, and the date is the 4th July 2014. Mr Debelle, can we start with your full name and date of birth?
My full name is Bruce Malcolm Debelle and I was born on the 25th of June 1938.
Where were you born?
In Woodville, in Adelaide.
And your parents, their names?
My father was Geoffrey Arthur Wilfred Debelle. My mother was Phyllis Doreen Debelle. They had come to South Australia from New South Wales; they were both from New South Wales.
My father came from Sydney. He was a civil engineer and had come here in 1936 looking for a job following the Depression. He was appointed deputy city engineer at what was then the Town of Woodville, which is now part of the City of Charles Sturt. The office of the council was then on Woodville Road, Woodville.
Mother was a school teacher . My parents came to Adelaide in about October 1936. They were married here, hardly knowing a soul. Then I was born, in Woodville in a nursing home on Woodville Road, Woodville.
In 1939, not long after I was born, father took a job as the town engineer, at which was then the Town of Port Pirie, and they moved there in early 1939, the time of the great heat wave. I can remember my mother telling me how the only way she could keep me cool was virtually keeping me in a bath all day.
I would imagine huge dust storms up there, too?
Rarely, rarely, but it was one of the years of record heat with like 14 days or so over 100.
And no air-conditioning.
No air-conditioning. My sister was born in Pirie. My father then went away to serve during the war and my mother went back home to her father’s farm just outside Tamworth in New South Wales, where I spent most of my childhood.
Maybe that instilled some of your love of the land?
I think it did, because later both when I was a judge and after I’d retired, I had 100 acres in the hills which was tremendous fun. I think I probably wanted to have it just because I had that love of the land instilled in me as a boy. In fact, I can remember going back once to visit an uncle in Tamworth. It was during the Olympic Games in Sydney in 2000, and I can remember stepping off the plane at Tamworth with this extraordinary feeling which still fills me with emotion - I felt like I was coming back home. It was extraordinary.
That was your home, you loved it obviously.
Education-wise, you went to primary school while you were there in Tamworth?
No. In Tamworth my education was by correspondence. Michael Kirby has always said to me I should tell the New South Wales Education Department I’m a successful product of their Correspondence System [laughs].
During the war we went to Sydney for a time and I went to a kindergarten there, and in 1944 father was posted to Geelong, because he was in the Royal Australian Air Force and he was building airstrips. He built a strip just outside Geelong, which is now the Avalon base, used by Qantas for training. In 1944 I went to Brunswick West Primary School until we returned to Port Pirie in December 1945. We went back to Pirie and I went to Pirie School in 1946 in Grade 3. So until that time I had a varied education.
Then we came back down to Adelaide and Dad took an appointment as the engineer for the City of Woodville, and we returned to Adelaide in May 1947. I went to Woodville Primary School and thereafter I was lucky. I got a scholarship and went to St Peter’s College.
Why did you decide to study law? You went to university straight from St Peter’s?
I went straight from St Peter’s. Originally I was going to be an engineer like my father. I was going to build great bridges’ and all those kinds of things, but lack of proficiency at mathematics, combined with, I think, a love of the classics - I was very keen on Latin and history and indeed, French as well - meant that I did an arts-oriented course. There was an old scholar of the school, Richard Blackburn, who was then Professor of Law at the University of Adelaide. He came out to school on a careers day and talked about the law and I was captivated by him. He was a very entertaining, accomplished public speaker. I remember at university watching him debate; he was a great debater. I can remember him coming to school and I went home and I said to my mother, “I’m going to do law”.
It had a big impact on you, that day?
It did and I think I’ll be always grateful to him. He was my first law professor in the Law School when I began in 1957. He left in 1958 to go to Finlaysons. It was then Finlayson, Phillips, Astley & Hayward, now called Finlayson & Co. He then practised here in South Australia for a while and then he was appointed to the Supreme Court of the Northern Territory, and later became a Judge of the Supreme Court in the Australian Capital Territory.
What do you remember of your days at university?
I was lucky I went to St Mark’s, on a scholarship. Again, I was lucky I got a scholarship to go there. Four absolutely glorious and, if one is honest, selfish years at university, and at a University College, which was thoroughly enjoyable. I can remember being involved in university revues, both at College, St Mark’s College, and in The Footlights Club. I was in two Footlights Club revues, as well as in the very first Law School revue, which was largely the result of the cleverness of Bill Cornish who wrote most of the scripts - not all of them, I think, but most of them, and he put together all the music. It was stunningly clever. He later got a British Commonwealth scholarship and went to England where he remained. He became a Professor at the University of London initially, and then later Professor at Cambridge University. His specialty was legal history and, curiously enough, because it doesn’t sound as if it would exactly go with it, he was one of the intellectual property experts in the United Kingdom. He was a very, very talented person, Bill Cornish. His father was Jack Cornish, who later was one of my first employers when I began articles. His father was a lovely genial and clever solicitor.
The firm that I began my articles with was Pickering Cornish, Jack Cornish to whom I’ve just referred, Pickering Cornish & Lempriere Abbott. Arthur Pickering was a Queen’s Counsel. There was Arthur Pickering, Queen’s Counsel, Jack Cornish and Tony Abbott, who was Sam Abbott’s father. Sam Abbott is in Bar Chambers at the moment. I was very fortunate in that we began articles in our last year at Law School. I did my articles with David Wicks. We began together I remember in a library tucked at the back of the offices of Pickering, Cornish & Lempriere Abbott, which was at 23 Grenfell Street, Adelaide – it might have been 25 - in what was called the ADC Building, the Adelaide Development Company, a company owned by John Roche, which was a land development company.
At the end of my last year, I had passed my final exams and I was disappointed that I had missed on scholarships to England. I received a phone call from Chris Legoe, who was then the only barrister in Adelaide practising independently as a barrister in the Cowra Chambers in Grenfell Street. He rang me and asked me would I like to be a High Court Judge’s Associate? Well, one could hardly imagine a more attractive offer and I accepted of course and I became Associate to Justice Windeyer of the High Court of Australia, Sir Victor Windeyer.
Was that the first time a South Australian had been appointed as an Associate to the High Court?
I was the very first South Australian to be appointed.
The story goes that Sir Victor Windeyer had had command of a South Australian battalion during the war, the 2/48th Battalion, which incidentally was the most decorated battalion during the war. They were at Tobruk, El Alamein, then later in New Guinea and in Borneo. Sir Victor Windeyer said to Sir Owen Dixon, who was then Chief Justice, “We don’t seem to have any Associates other than from Brisbane, Sydney or Melbourne”. And Dixon said to Windeyer, “Well, Windeyer, you commanded a South Australian battalion, perhaps you might like to get a South Australian?” That’s how it happened. Windeyer knew Chris Legoe. More accurately he knew Molly Legoe, Chris’ mother, and so he rang him and I got the job.
I read that had a profound impact on you, that time with him, on your legal career.
I don’t know whether it had a profound impact on my legal career as such. It certainly had a profound impact on me. He was the most extraordinarily generous person to work with, although I always felt that chambers were run on somewhat military lines. At the end of the war, he finished a Brigadier and later was promoted Major General. I always thought that I was the young subaltern in the Chambers, and tipstaff was the Judge’s batman, as it were [laughs]. That said, I wouldn’t want to create a false impression, because he was extraordinarily generous to me in all kinds of ways, although I will never forgive him for just one slight thing. It was towards the end of my associateship, which lasted a year. There was a time when Australia had parted from the English common law tradition in the criminal law in requiring a subjective assessment of guilt, rather than an objective assessment of guilt in murder. I can remember Sir Owen Dixon coming into my Judge’s chambers and Sir Owen then began to criticise each and every member of the House of Lords for their individual views and making assessments of their capacities and so on and so forth, in a way that only Dixon could, and my Judge thought it was appropriate I should leave the room [laughs].
And you really wanted to hear what was going to happen?
Yes, because you can imagine my eyes were getting rounder and rounder by the minute.
What happened after your year with the Judge? What did you go into then?
While I was serving as a Judge’s Associate, Arthur Pickering had died and the firm had dissolved. My articles were with Bob Mohr, who later became a District Court Judge and then a Supreme Court Judge. He had a very large running down practice when I was at the Court. Seeing the kind of work the Court was involved in and listening to my fellow associates talking, I didn’t want to have that kind of practice, so I thought I should check, look around, change, or seek another principal. At the time we were in Melbourne - the High Court in those days would travel to each of the major capitals at least once a year. There were three sittings each in Melbourne and Sydney as the majority of the business was then, and as it is now. There was a case, it was Bennett & Fisher Ltd vs The Electricity Trust of South Australia, Sam Jacobs was being lead by Charles Bright QC. Sam Jacobs was then a Junior Counsel and on the other side was Keith Sangster for the Electricity Trust. I’d watched the argument and was very impressed with Sangster. Afterwards, I asked him if I could see him, and he very kindly spoke to me and had a chat with me. I told him I wanted to be articled to him – and he said, “Well, I don’t think I can take you on, but I suggest you try Sam Jacobs”, so I approached Jacobs and he willingly took me on, which was very kind of him.
When I finished my associateship in February 1962, I went to what was then Stevens, Boucaut, Jacobs & Bollen, and resumed my Articles. In those days, a Judge’s Associate in the Supreme Court would count as part of your Articles. Sadly, my High Court Associateship quite curiously wouldn’t suffice, so I had to do another year’s Articles. I got a short exemption of about three months, and I was admitted in December ’62, along with John Wilkinson, Alan McGregor and a man called Jones, whose Christian name I forget.
After Articles and after you were admitted, did you stay with Sam Jacobs’ firm?
I was there at that firm until 1975.
What sort of cases, or work, were you involved with predominantly?
The firm acted for the South Australian Brewing Company, it was one of its large clients. Another one was Penfolds, which was before it was taken over by what later became Southcorp. The firm also acted for the RAA. A lot of my initial work was appearing for members of the RAA in Magistrate’s Courts, which was very good training. Licensing work was very busy. In 1967, Don Dunstan, he was then Premier, announced an enquiry into the licensing laws, which resulted in the – no, sorry, that was in 1966, the Royal Commissioner was Mr Keith Sangster, QC. The Brewery was of course very heavily involved in that. The Commission reviewed the licensing laws, which lead to the Licensing Act of 1967 and a tremendous liberalisation of licensing laws; the end of six o’clock closing and the like. It really paved the way for restaurants because, until then, restaurants were few and far between. So there was a lot of licensing work.
There was one case which lead to the Royal Commission. I remember it was called the Bay Hotel/Motel Pty Ltd v The Broadway Hotel. The Broadway Hotel had opposed the motel getting a licence to sell liquor. Those were the days of local option polls and so on and so forth, and Chief Justice Sir Mellis Napier was very critical of the Licensing Act. That gave Dunstan the green light to institute the Royal Commission. The work was varied, there was quite a lot of commercial work, major litigation of one kind or another.
Did you have someone that was a mentor for you in those days?
Sam Jacobs was very much my mentor and was my principal. We worked together a lot. It would be presumptuous of me to say that we worked as a team, but I was very often his Junior. I learned a lot from that. In other cases in which I was involved, which needed a leader, I’d regularly brief him and that was in all kinds of fields, commercial litigation, other major civil litigation, equity, as well as licensing and other areas. I can remember quite fondly that he was a busy silk. There was a time when he was President of the Law Society. He was also Chairman of the Finance Committee of the University of Adelaide – a job he described as the most difficult unpaid job in Adelaide. He was on the Council of the University of Adelaide, as well as having a busy practice. So it was hard to see him, to confer, so that quite often when I’d be briefing him, I’d go out to his house on a Sunday night and we would sit by the fire in the winter, and I’d brief him and we’d go into court on the Monday. He had a great capacity to get on top of a case, and he certainly had a great capacity also to point out the flaws in what I’d prepared as a Junior. It was a great learning experience. I’d have to bustle about before we went to court to fix the gaps. He was very much my mentor, and he also taught me how to write a decent letter and to concentrate on using proper, good old Anglo-Saxon four-letter words. I still shudder when some people say they will “forward” something. Why don’t they just “send” it? I remember when I used to use the word “forward”, he’d put a line through it and use the word “send”, which is a good example of a four-letter Anglo-Saxon word being used.
One of the interesting experiences I had as a very young solicitor was when we applied for, and ultimately obtained, a television licence for what was then called Channel 10 and later changed its name to Channel 7, here in Adelaide. That was an interesting experience because the application was opposed by what was then Channel 7 in Adelaide, and the hearing was in Melbourne. I had to fly to Melbourne with a suitcase full of paper, which was the papers we had to lodge with the Australian Broadcasting Authority at the time. It conducted the hearing ultimately in Melbourne. The application was mounted by the business houses of Adelaide. There was Moxon Simpson from A M Simpson & Co. John Martins had a big investment and Sir Edward Hayward was involved. Arnold Moulden, who himself had earlier been President of the Law Society was another of the directors of the company, which was called SA Telecasters Ltd. Then Sir Reginald Ansett became very interested in supporting us as well, and I can remember flying to Melbourne to meet with Sir Reginald Ansett in his office.
I have to tell a story against myself. The meeting was on a Sunday, and the night before Sam Jacobs had had an office party at his house. I got to bed rather late and we have to catch an early six o’clock plane. It was a very rough flight and, of course we were flying Ansett I can remember the flight was so rough I was ill. I had to go and meet Sir Reginald and confess to the fact that I’d made a mess on one of his planes [laughs]. But we had later meetings with Ansett. It was amazing to see how an organisation like that worked. It was my first exposure to political lobbyists, and the actual hearing itself was fascinating. Our team was lead by Charles Bright. Sam Jacobs was his junior. I was very much the bag carrier. And there was an Adelaide accountant I called Sid Powell, from Peat Marwick Mitchell, who was providing the financial advice. He was fantastic. On the other side for Channel 7 was Neil McEwin, again, a former President of this Society, who was at Baker McEwin. His leader in Melbourne was Sir John Young. Well he wasn’t then Sir John Young, he was John Young, QC. He later became Chief Justice of Victoria. And another team was lead by George Lush QC, who also became a Judge of the Supreme Court of Victoria. So it was quite classy.
There are heavy-weight names there.
Yes. That was a fascinating experience. I acted for Channel 10. Thereafter, it later became Channel 7 and I continued to act for it even when I went to the Bar. I had a special retainer from the company and later became a director of the company.
So that was the start of a long association with them?
A very long association, a long and entertaining and happy relationship.
So you stayed with Sam Jacobs for how long?
He was appointed to the Bench in 1973 or thereabouts. The firm was a good firm and we had people like Derek Bollen.
Who was a bit of a character I hear.
He was very much his own man, and a very clever man. People don’t give him the credit that he deserved. He was very unfairly treated in the end for what was perhaps just an unfortunate expression, which I think was unduly magnified out of all proportion, and he had to suffer a lot for that. I think it did affect his health in the end, the treatment he unfairly received. I had a very high regard for him, very quick wit, very clever wit, with a prodigious memory and a great reader to boot. His memory was amazing, particularly for sporting statistics. He could recall, for example, all the winners of Wimbledon. There wasn’t a statistic about cricket that anyone could match him on, and he used to know also the winners of the US Open, US Open Golf I should say.
So he loved sport all around?
He did, but he also had a very quick wit. I’ll never forget Tom Gray dealing with an accident matter, and I saw the letter he wrote. Tom Gray had written him a letter from Genders, Wilson & Bray a long, involved letter suggesting a whole lot of things, and Derek Bollen simply sent his reply off: “Mr T Gray, Genders, Wilson & Bray etc., Re: so and so…”Yes.”
[Laughs] Very succinct.
Very succinct. He had a very quick wit, very, very clever.
So you stayed with that firm?
Although Derek was there and he was very strong, I just felt that when Sam Jacobs left something had gone from the firm and I wasn’t entirely doing the kind of work that I wanted to do. The office of the firm was then at 73 Pirie Street. I can remember walking out of the front door of the office and running into Michael Astley, who I knew quite well. We struck up a conversation and were just chatting about all kinds of things, and then towards the end he asked me how I was going and I expressed a desire to change firms. The next thing I know he rings me, “Would you like to come with us?” So in 1975 I moved to Finlaysons, where I remained until I ultimately left. I was immediately made a partner and I left the firm at the beginning of 1983.
And of course in 1982 you were made a QC?
Yes. Before then I had two memorable trips to the Privy Council in 1975, acting for the City of Marion against Lady Becker who owned land which was part of the Hills Face Zone at the rear of what is now the City of Marion up near what is called Flagstaff Hill. She wanted to subdivide that land and the Council opposed it and the State Department of Planning was involved as well. We won in the Full Court, but Bob Fisher who was leading David Bleby for Lady Becker decided they would have a better chance if Lady Becker appealed to the Privy Council rather than the High Court, and he was correct. If they had gone to the High Court they would have lost, but he was able to persuade the Privy Council in May 1975 to grant them leave to appeal. We went back and argued the case in November 1975 and they succeeded, but I’m happy to say that although the Marion Council lost the battle, it won the war in the sense that the State Government then acquired that land and it now remains Hills Face Zone land. That was 1975. In 1978, and I should just add, then I had a stint on the City of Walkerville as a Councillor, I was there for six years, ’72 to ’78…
What inspired you to become a Councillor?
My father had been involved in local government affairs. Walkerville was a town Council, a small Council I should say, Walkerville was a very small Council. It’s the second smallest local governing area in the country. There was also a bit of a tradition of service in that people in Walkerville gave time to the Council. A friend of mine was going off the Council, would I like to go? I put myself forward, and fortunately there were no elections and I did six years.
I retired from the Council in 1978, when Michael Kirby asked me to join the Australian Law Reform Commission. That was a result of a seminar on land acquisition. I was doing a lot of land acquisition law at the time, that is to say, compensation for people whose land had been compulsorily acquired. I was doing a lot of that, as well as a lot of town planning work at the time, and there was a seminar here in Adelaide run by the Australian Law Reform Commission, and Kirby was here. I spoke at that seminar and consequently he asked me join the Commission. I had just been disappointed because I had applied for silk at Sam Jacobs’ suggestion and found myself knocked back. So I thought, “Well blow this, I’ll give the Law Reform Commission a chance.” I spent three years with the Reform Commission working in Sydney…
Full-time with them?
Full-time yes. My family and I had to move to Sydney.
How did you find that work?
Fascinating. I think, if I’m absolutely true to myself I’m not sure that I was entirely cut out for law reform. I was not opposed to the concept, but I do not think I had the correct approach to the work. I didn’t acquit myself as well as I would have liked to have done as a Law Reform Commissioner, but I did a lot of work, there’s no doubt about it, and enjoyed the time.
It would have been different work then, interesting work?
Oh, it was entirely different, but interesting at the same time.
You then moved back to South Australia?
Back to Adelaide, and as you said, I took silk in ’82. Len King was then Chief Justice, and had been for a while and the rule then, as it is now, was that you had give an undertaking to leave your firm. So I had to leave Finlaysons and practise on my own as a barrister in my own right.
And you joined Bar Chambers at that time?
No, initially there was nowhere to go. When I was in the Law Reform Commission, David Bleby had rung me asking if I would like to join those who were setting up what became Jeffcott Chambers. At that time, I still had a year to run at the Law Reform Commission. I hadn’t really decided then that I would go to the Bar, and for one reason or another I couldn’t take it up. I think I had decided I’d go to the Bar, but I was just not in a position to take the offer up. So when I had to set out in my own practice, there was no room anywhere in any of the chambers so for a short time I worked in what was the old Rechabite Building in Victoria Square in my own chambers.
Initially, when I went in to practice at the separate Bar, I was in chambers in the Rechabite Building in Victoria Square. I was then joined by Philip McNamara, who was then a part-time university lecturer and part-time at the Bar. I can remember saying to him, “Philip, you should be spending your time at the Bar. You’ll never succeed while you are trying to do both”, and he ultimately did make that decision, saying that I had spurred him into it. Then a room became available for me in Bar Chambers and I moved. It was when Phil Rice was appointed a Judge in the Northern Territory, so I took his room at Bar Chambers.
What did you enjoy about being at the Bar?
Well, I guess the first thing that immediately comes to mind is being at the Bar and not being a part of a solicitor’s office, avoiding long, interminable partners’ meetings. Initially, when I was in Chambers, Tim Williams was head of Chambers, and the meetings could sometimes go a bit long. When Tim was appointed, John Perry took over as Head of Chambers. John, in his usual democratic way, didn’t have meetings, he just made the decisions [laughs]. The absence of partners, I think the complete freedom.
I’ve been thinking lately, only because I came across an old letter I found I’d kept from The Times when I was in London in 1985 at an American Bar Association conference. There happened to be some debate at that time about the fusion of the profession in England, which was of course opposed by the Bar. Re-reading those letters and having been involved in the whole topic of fusion - about which a funny story later if you can make a note to ask me - thinking about it I’ve really come to the conclusion that a separate Bar is the most efficient way to deliver legal services. I say that because I can remember trying to be both barrister and run a legal practice, and you cannot do both successfully. If you are involved in a long case, it requires the whole of your time and attention. If you are involved in a long case, then inevitably the work of other clients must suffer. It’s impossible to have it otherwise unless you are lucky to have a whole team that can take over that work for you, which I did not.
In addition to that, junior barristers particularly often come more cheaply in terms of their hourly rates than solicitors, and they can do just as effective work. So that’s another of the benefits of the Bar, and I enjoyed not having to try and be juggling so many things at once. You could concentrate wholly on one particular matter which was the centre of your attention.
And had you got to a position where you could select what cases you wanted to take on?
Well, there’s the cab rank rule, so that you take the cases that came your way, even when Tom Gray wanted to handball to me a case which he didn’t want to do, because he knew he was going to lose. I took it on.
And some cases of note during that time?
All of my cases were of note [laughs].
Said like a true barrister and QC. Ones that are more memorable, or even lengthy cases that you may have been involved with?
One particular thing I remember being involved with really sticks in my mind. My first wife died of cancer when she was 41, and I can remember not long before her death I had four cases in the Full Court, one after the other after the other. The challenge of that, even though I had to also deal with the fact that my wife was dying, the challenge of that was intellectually very satisfying, and also I think helped me cope with dealing with the fact that my wife was dying. I can remember that one of my Juniors was Andrew Martin and him marvelling at what I was doing, but it was just so satisfying. I can’t remember whether I won them all [laughs], but the challenge of doing it, switching gear and presenting a proper and complete argument, it was very satisfying.
Do you think that’s where you thrived, being in a courtroom setting? Maybe it was your days from the Adelaide Revue coming back to play?
I’ve always said that good barristers are failed actors, but no, I think it was more. I’d done some debating in school, a little bit, not much debating at the university to my regret, because I think I would have been a better barrister if I’d done more debating. I don’t think I was a particularly good barrister. I was better in presenting an argument than I was in examining clients. People who are very good cross-examiners, Mulligan was a very good cross-examiner, Duggan was a very good cross-examiner and Bruce Lander was dynamic, probably of those three the best, although it would be hard to overlook Duggan. But yes, people have their different skills at the Bar, and there was one case I’ll never forget. At the risk of boasting - but it was the satisfaction that occurred at the time - I was acting against the City of Marion and I was acting for a shopping centre which was opposing another shopping development which depended on closing a road that formed a T-junction with South Road. It was at Edwardstown, and the development is now the large shopping centre down at Edwardstown...
The Castle Plaza one?
Castle Plaza, you’re right. The Department of Planning and the City of Marion closed a road, and I was arguing that the City of Marion had not gone through the correct procedures to close this road and, in fact, it was contrary to the rules of natural justice because they had just simply closed it and hadn’t heard those affected by the closure. The Commissioner of Highways was also involved under the Roads Opening and Closing Act. He had a conflict of interest as well, and it breached the rules of natural justice. No one gave us a chance in Hades I remember, and I was being opposed by John Doyle. He was then Solicitor General, acting for the Commissioner of Highways, and John Von Doussa was acting for the shopping centre which was going to develop this proposal. As I say, no one gave us a hope in Hades. We began at 2:15 that afternoon, and at 4:30 when I finished my argument the satisfaction of seeing Doyle and Von Doussa locked in a huddle, thinking, “maybe he has got a point”, and we actually did win the case.
It was. To make two clever people like Doyle and Von Doussa get in a huddle when they’ve not given you any sort of chance before was very satisfying [laughs].
And big names in the legal profession, yes?
So then of course you get the call in 1990. Do you want to describe what happened then?
Well, it was a very difficult decision when I was asked if I would like to be a Judge. I was then very heavily involved in the Law Council of Australia. I was also on the Executive of the Society here.
You were President Elect for the Law Council, weren’t you at the time?
I was President of the Society and I was President Elect of the Law Council of Australia; the idea being you nominate, get someone elected as President Elect so that they get a feel for what’s involved before they take on the Presidency. The Presidency then, it may still do, had all sorts of attractions. In addition to being head of a prestigious legal organisation representing the whole of the profession in the country, there were perks such as going to London to the opening of the legal year in London, which is a grand affair in Westminster Hall, really the home of justice in many ways. And also going to the opening of the American Bar Association year. So there were some real attractions to being President, apart from the fact I’d served the Law Council of Australia for a number of years and that was going to be the ultimate prize for that service. After weighing it all, I decided to accept the offer of appointment.
Were you surprised by the offer?
Yes, I hadn’t expected that.
What happens? Do you receive a phone call?
I received a phone call from Chris Sumner. I was surprised because it was a Labor Government appointing someone who was reputed to have conservative politics, so I think that was why I was surprised. I didn’t think I’d be appointed by a Labor Government. Not that I am of conservative politics, but I just didn’t think I’d be appointed.
Did you feel well equipped to become a Judge?
That’s a very good question. In one area I certainly did not feel equipped, and that was in the area of criminal law. I knew that I would have to be presiding over trials, and serious trials at that because the Supreme Court tends to deal with the more serious crimes, and I had had very limited criminal experience. I’ll never forget receiving a letter from John Bray congratulating me on my appointment, and very sensibly recommending to me that I pick up Archbold on Criminal Law and Practice. I was appointed in October 1990, I did civil work until the Christmas vacation. We went to the beach for the Christmas vacation, and under my arm was tucked Archbold.
A bit of light reading for the holidays.
I read Archbold over the Christmas holidays knowing that I was going to be involved in criminal trials in March; so I did that preparation and I’m very grateful for John Bray’s recommendation, because I think I used to run a reasonably good trial.
Any other good advice in those early days regarding how to be a good judge?
Some of the best advice came from Brian Cox and also from Bob Mohr, who were both colleagues on the Court. If I may intervene and come back to your question, one of the joys of that time, one of the joys of taking on the appointment and one of the reasons why I did take the appointment at the time was that it would mean that three former members of the firm of Stevens, Jacobs, Mellor and Bollen would be on the Court at the same time. That is to say, Sam Jacobs, Derek Bollen and me. There was a period of three months when Sam Jacobs and I were both on the Court with Derek Bollen. I think that might have been the first time three of the judges had been members of the same firm.
To return to your question about the advice I got, I was referring to Brian Cox and Bob Mohr. Bob Mohr, I remember he very wisely said to me, “Just remember that they can’t go on without you”. That is to say, if you were uncertain as to anything, then you had time to go look it up, or you could adjourn and look it up and so on. Brian Cox also said to me something which I pass on to others, “Remember, when you’re writing your judgments, you’re not writing for posterity”. I think it’s a very easy trap to fall into to believe that someone other than the parties to the litigation is going to be interested in what you’re writing. It’s much better to get your judgment out quickly and don’t think you’re writing for posterity. You’re not writing an essay on the law, you’re just deciding a case as between parties.
That’s something I remember Sir Garfield Barwick saying years ago. I remember once I appeared before the High Court when Sir Garfield Barwick was Chief Justice. They were two cases involving Section 92 of the Constitution, and of course as everybody knows, Sir Garfield Barwick was an absolute protagonist of freedom of trade under Section 92 to almost absurd lengths. When arguing those two cases, I got buckets of coal heaped upon my head by Sir Garfield but I won one and lost the other [laughs]. After the case was over, whether he was feeling guilty or not, he called me in and my opposing counsel into chambers for a cup of tea. One of the judgments which had been appealed from was a very long, long judgment by a Magistrate, in which he had gone into enormous detail about Section 92 and his judgment did smack of an academic essay rather than a decision. I can remember Garfield Barwick saying, “Judges are here to decide cases, not to write essays on the law”, which is very much as you will see in his own judgments. They are to be contrasted with my former boss, Victor Windeyer who would go into the legal history of the matter which often assisted the resolution of the question and issue. Windeyer’s judgments are much better than Sir Garfield Barwick’s and even better perhaps than Sir Owen Dixon’s, although that’s a bold thing to say, but I think it’s true. I know that there are others, including Sir Anthony Mason who would agree with that view.
Did you try to bring a certain style as a judge, or was there a certain way that you liked to run your courtroom? Certain expectations you may have had from those appearing before you?
I certainly wouldn’t presume to try and bring style into it. At the end of the day you were there to do a job, and you did it to the best of your ability. We all have our failings. Looking back, I wasn’t as courteous to counsel as I should have been. I wasn’t rude, but I think there were times when I expected a lot.
Is that because they weren’t prepared?
I had a view counsel should go into a case well-prepared. Too many counsel go into a case unprepared. I would not tolerate that, and I think, if I was cross with someone, it was because of that. Sometimes people could be a bit arrogant in presentation of cases and I didn’t like that, I’d get cross with that. I think sometimes I was perhaps a bit harsh on lack of preparation, but I took the view, for right or wrong, that toleration of ill-prepared cases only leads to more ill-prepared cases. I think some judges are too kind on those who were not well prepared.
What were some of the cases of note that you presided over?
My very first one was in the first couple of months of my judicial career. Len King as Chief Justice asked to see me in chambers, and he asked if I would take over the conduct of a new matter which was to appoint a provisional liquidator of a company called J N Taylor Holdings. J N Taylor used to be a motorcycle company in Adelaide. It used to trade near the corner of Pirie Street and Gawler Place; the building no longer exists of course. In fact, I remember it sold motorbikes from there. It later became part of Bell Holdings, which was one of Robert Holmes à Court’s companies. That company was ultimately acquired by Alan Bond. The company had assets of about $200 million cash. Bond had acquired that company and stripped it of its cash in the space of about six months and an action was brought to wind up the company by some major investors like ANZ Bank. I appointed the provisional liquidator and later the liquidator of that company who was Richard England. Mark Hoffman was counsel. He was lead by Tom Gray. And that was one of the straws that broke Bond’s back. I wouldn’t say it was the last straw, but it was one of the significant ones. That lead ultimately to Richard England having the administration of all of the Bond companies, most of them I should say, not all of them, the greater part of them and the litigation being conducted in our Court, and I was involved in most of that litigation, which was quite fascinating I have to say. It was very substantial commercial litigation and had some very fascinating aspects. Hoffman has to be commended for his work in that. He had a remarkable memory for detail, as well as a remarkable grasp of the principles. His career certainly prospered on that litigation and he is to be commended for his conduct of it.
It has its funny moments. I’ll never forget that the liquidator was trying to serve two of Alan Bond’s sons, one of whom was in England. Craig Bond was in England and he was doing his best to evade those who were seeking to serve him. He was staying in a country house out in Surrey I think it was, and he would drive in and out of the grounds of this house which had a gate. Eventually those who were effecting service disguised themselves as trees, and as the car stopped to do something, one of these trees suddenly materialised as a human being and served the papers on Craig Bond [laughs].
Going to any lengths [laughs].
I couldn’t believe it when I read the affidavit.
So that was quite a lengthy case?
There was not one case. There was a whole series of different cases, some of which were quite fascinating in their result. It was very interesting litigation, trying to chase Bond’s assets.
And obviously it would have had a lot of media coverage too, at the time?
Initially. That tapered off because the litigation was so long. Richard England and Mark Hoffman need to be congratulated for their efforts, because they achieved a remarkable return for the shareholders and creditors.
Any other cases that spring to mind? Because you were on the Bench for 18 years initially, until your retirement.
Yes. I had one case, a murder trial, which was described as the “trial from hell”, by one of my colleagues at a judges’ conference. He was probably guilty of understatement. It was a trial of eight persons accused for murder. It was a very difficult trial to run. Counsel did not behave, I thought, at all well; well some of them didn’t, I won’t name them. But it was a verdict which withstood two appeals.
My first murder trial I’ll never forget largely because - one of the reasons - because it too survived a High Court appeal, but it was a trial where if anything could go wrong it would go wrong, which was a test for me. I was able to survive the test, I think, at the end of what became an unduly long trial. It was a trial in Mount Gambier. The case was The Queen vs. Webb and Hay. A Torres Strait Islander man and an Aboriginal woman charged with murder of a white man who they just met one night in Mount Gambier. It was an awful killing, and the jurors were all local Mount Gambier people. A number of them had small businesses. The trial began before the 30th June and it went for about six weeks I think, well into July. I began my summing up on the Friday at the end of the trial, and I said to the jury that I would come back on Monday, but I knew that a lot of them wanted to get their 30th of June figures done. I was prepared to sit on the weekend if they wished. They said, “We’ll sit on the weekend.” We were going to start at 9:30 on the Saturday, I was in chambers at nine o’clock and I got a message that Counsel wanted to see me. I was given a message that one of the jurors had been seen giving flowers that morning to the mother of the victim that led to an application to discharge the jury after what had been a six week trial. I refused the application and they were convicted.
Did it go to appeal?
Yes, there was an appeal to the Full Court which was, dismissed. Sid Tilmouth was arguing the application for leave to appeal before the High Court. Justice Brennan said to him, “Get to the flowers point, Mr Tilmouth, get to the flowers point.” Tilmouth was wasting his time on other issues. Leave was granted because of the flowers being given by a member of the jury, but the High Court upheld the conviction with Justice Brennan dissenting, I should add. I’ll never forget that trial, because if anything could go wrong it did, not through any fault of mine I’m happy to say, but just through events that others created. One of the accused changed his plea twice before the trial. When we had discharged the jury and started all over again, it was difficult to find jurors who did not know the accused, because she’d lived in Mount Gambier for a long time. It was quite incredible.
Did you find it hard to disassociate yourself from material that you might have heard in the courtroom during the day, and then go home and try and forget about it, or did you sort of live the case the whole time until it was finished? For any case, not just particularly that one.
That would very much depend on the particular case. One time you would go home with it would be when you were doing a direction to the jury. We often had to do that at night time anyway. The thing that really went home with you was when you were sentencing, because it’s such a difficult task, that would sometimes wake you up at night. I think you won’t find a judge who wouldn’t agree that the task of sentencing is the most difficult of the judicial tasks.
Was there a good camaraderie between yourself and the other judges at the time?
I think so. Len King was a rather aloof Chief Justice. He very much ran the show, but the other judges got on very well. I’m sorry I didn’t have Sam Jacobs there for long, mainly because of his friendship, but Bollen was very friendly. Bollen was on the committee which ran the annual conference of the State, Supreme Court and Federal Court Judges. I succeeded him on that committee. I became chairman of that committee. Bob Mohr had also been my principal before. It was a very good Court. There was not as much discussion of cases among judges in the Full Court as I would have liked. I think it’s important for judges of the Full Court to confer sometimes.
There was one particular case fairly early on in my judicial career. It was about a landlord and tenant, I have no recollection of the name and I don’t think it’s reported, but it involved friends of Len King and Michael White, who obviously could not have sat on the case. My colleagues were Matheson and Millhouse and there was a sticky landlord and tenant issue, a sticky issue of law not easily resolved and I spend some time working on it. I can remember Matheson getting out a judgement which I didn’t think was right. Millhouse quickly agreed. I didn’t think either of them was correct. I went away and beavered away for a while and then presented my reasons and said, “I’d like to talk about it”, and Matheson declined. I don’t think that was right. I do remember, I’m boasting, may I boast?
You may boast, it’s a perfect opportunity to boast.
I will never forget one particular case. It involved Sunday trading, and at a time before the present Sunday trading had been proclaimed. Anyway, the State Government proclaimed that there would be Sunday trading and the Shop Distributor’s Union challenged the proclamation on the ground that the Government had failed to comply with the appropriate procedures. I was on the Full Court with Olsson and Mohr. Olsson quickly got his judgment out as usual, Mohr agreed and I knew they were wrong, and again I wrote a dissenting judgment. Again, it would be nice if we’d conferred but we didn’t. Anyway, the Shop Union lost the case. It applied for leave to appeal to the High Court. One of the great satisfactions of my life was John Doyle, who was Solicitor General and who argued the case for the Crown trying to uphold the proclamation who said to me later, “Our hardest problem in the leave of application was your judgment”. The High Court agreed with me. That was very satisfying and it also is a mark of John Doyle as a decent human being that he should come to you and say that.
To acknowledge that?
To acknowledge that, although I think I had it first from Jonathan Wells, who had argued the case for Shop Distributor’s Union.
So on your 70th birthday you had to retire?
But then I note that you were made an Auxiliary Judge?
And I have been each year since.
So that’s just done on a yearly basis? That’s how that works?
Yes, in case we’re required, yes.
So you’ve still not really retired at all?
[Laughs] Well, I’m not working as a judge, but I did do, two stints in New South Wales. It’s been in the Equity Division of the Supreme Court of New South Wales, which I thoroughly enjoyed. I enjoyed the work. The Court didn’t provide digs. I thought they might at least have given me digs to go and live in, but I had to make do with accommodation. My wife wasn’t with me, so it wasn’t all that enjoyable on the domestic front, but work itself was quite fascinating.
You said to me it was challenging.
And of course the Royal Commission that you were involved with, that obviously took up a huge amount of your time. How did you find that role? Did you find it emotionally upsetting to go through?
It was not emotionally upsetting, I enjoyed the challenge of it, and like all those kinds of things, Government wanted the report the day before yesterday. The challenge was in dealing with issues promptly and appropriately and mindful of the rules of natural justice.
You might recall the fact that I was conducting an inquiry of a different kind from a normal Royal Commission where you have lots of lawyers sitting in a formal court-like atmosphere. I was virtually making my own enquiries.
I have to place on record my unbounded gratitude to Amanda Pienaar, who was an officer in the Crown Solicitor’s Office. She may now be in the Director of Public Prosecutions Office again, but she had served in the Director of Public Prosecutions Office and had done a lot of child protection work. She was a very capable woman of enormous assistance to me in the work that I was doing. I also had another legal officer who was very helpful, another woman, who was very, very good; although one thanks people in the report they don’t get the credit they really deserve.
Once you made your findings, do you now keep a close check if any of those findings have been acted upon?
I think I’m one of the few Royal Commissioners who had his report acted upon. I think all of the recommendations have been acted upon. It was a critical issue and, at the end of the day, the recommendations that I made were simply related to the process that should be employed by the Department of Education when sexual misconduct occurs in a school and a person has been convicted of that misconduct. There were difficult issues as to the timing. My recommendation was that parents must be told. The difficulty in making the recommendation was the time when they were to be told, at the time of arrest, or only after conviction, or at some other time? That was very hard to decide because you had to bear in mind the interests of the accused person as well as everything else, as well as the pressure on people to know as soon as possible, and the fact that one is conscious of the fact that these things do spread around whatever regime might be in place. The rumour spreads…
Very quickly, yes.
We haven’t touched on your involvement with the Law Society which obviously has been quite extensive. The number of committees that you were involved with?
I forget the actual committees I was involved with now.
Let me have a look here, Lawasia Committee, Continuing Legal Education Committee, the Library Committee. Of course you were President in ‘89/’90 before you were appointed to the Bench…
Well running the CLE program as it was then called was an interesting and challenging task I enjoyed that. The library, well wherever I’ve been I seem to be associated with the library in one way or another. I used to run the library at Stevens & Co, I was the judge in charge of the library when I was a judge, not that I ran the library, but I was the judicial officer responsible with the librarian for the running of the library. I was involved in the Library Committee here. I enjoyed my time. Certainly one of the great things at that time was that the recognised leaders of the profession were all actively involved in the Society, and as well, some very colourful characters, Mulligan, Rod Burr, Terry Worthington. We had our fun as well as hard work. You came down here and you’d have an Executive meeting for a couple of hours after you’ve had a hard day’s work, sometimes three hours if there were matters of moment that had to be addressed. The collegiate spirit on the Council was good, but particularly at the Executive level. There was a remarkable degree of talent involved at the time. I speak of people like David Wicks, John Perry, Rod Burr, Terry Worthington, Peter Herriman, Brian Withers, John Mansfield. One of the happiest outcomes of all that is that six former Presidents now meet for lunch every two or three months. It continues. There’s Withers, Mansfield, Burr, Worthington, Herriman and myself. We had served in one capacity or another together over the years.
When you get together for lunch, do you generally talk about legal issues, or other things?
Legal and other things. Football gets a fair bashing at this time of the year, particularly as there are four Crows supporters and two Port supporters, two of us see the light, but…
So you’re a Crows supporter, is that what you’re saying?
I’m a Port supporter. No, we talk legal issues as well as other issues.
What about your time as President, what were some of the major issues that you were dealing with? I think moving into new premises was one of the top ones?
We moved into new premises before I was President.
This is to Waymouth Street?
This is to Waymouth Street from the premises we occupied at the back of the old Bennett & Fisher Building that was in a little side-street that runs off Currie Street.
Gilbert Place, thank you. During my service I would go to meetings at Gilbert Place and at Waymouth Street. The main issue that occurred in my time was the replacement of the then Executive Officer of the Society, Judy McAdam, with Barry Fitzgerald.
One of the particular things I remember also about that year was Brian Withers who succeeded me as President. He and I went to Perth because we believed - and it was very much his suggestion, and it was an excellent suggestion - we believed as a result of our experience at meetings in the Law Council that there was so much in common between the professions in Western Australia and South Australia that they should do more things together, and in particular, given that the Northern Territory had formerly been part of South Australia, both politically and legally, and had had a close tie in any event with South Australia, that the two Societies in the two cities, could produce booklets, and they could be made available to Darwin as well. So we tried to have a three-fold tie up, with the larger societies, the Western Australian and the South Australian Society helping to support the Northern Territory Society. Some things did occur as a result of that, but nothing of great consequence and I’m sad that more didn’t eventually occur. I still think it can occur, because the manner in which the two professions in Western Australia and South Australia are run is so similar, as indeed it is with the Territory. The thinking amongst the lawyers is very similar, the issues are very similar, and our thinking on some things does vary I think from the eastern states, not to a significant degree, but it makes sense to me for the three societies to do more together. Certainly it would be of great benefit to the smaller society in the Territory if they did.
Outside of law, I note that you have some quite interesting hobbies and interests, music, that you like anything from classical to jazz to Dire Straits?
[Laughs] As a result of the press release, when I became President of the Law Society read that I enjoyed reading the Oxford Book of English Verse and listening to the music of Dire Straits. A friend of mine sent a copy of that to the management of Dire Straits, and I have a letter, of which my son is extraordinarily envious, he being right into rock music, signed by Mark Knopfler saying he congratulated me on my appointment and he hoped that the next time the band played in Adelaide I’d arrive in my leather jacket on my motorbike to see the band perform [laughs].
I note also that you’re writing, or you said before, that you are writing a biography?
I have been for a long time trying to get on top of writing a biography of Sir Victor Windeyer. Things like Royal Commissions have diverted me from that. It’s a big task, but I’m grappling with it. I keep getting cross that I haven't got more time to do it. I’m also trying to deal with family biographical work…
And one of your children is a writer, no?
No, you are thinking of Penny Debelle. Penny Debelle who writes with The Advertiser is my sister-in-law.
Sister-in-law? There you go.
Yes, I have a son who is an Assistant Governor of the Reserve Bank, and a daughter. They are both in Sydney, and having remarried, after my wife died, I have three step-children and 12 grandchildren.
Well they can keep you busy [laughs].
Well, some of them are in America and some are in Sydney and some are in Adelaide, so it keeps me busy, yes.
And rugby union, you were quite a good player in your day I hear.
I played rugby union. Others can judge whether I was a good player.
[Laughs] Golf? Are you still golfing?
No, I wouldn’t pretend to be a golfer any more. I wouldn’t have pretended ever to be but I used to enjoy it. I don’t really play any sport now. The only thing in my recreation is riding a bike.
No, push-bike. Before I became a judge I bought 100 acres in the Hills, and we owned that for 22 years. We sold it three years ago. My recreation was very much looking after that, doing what had to be done with the cattle, feeding the cattle, cutting grass, doing all…
Do you miss that?
No, not now. I enjoyed it thoroughly. I sold it when I was aged about 72 or 73; I think the time had come for a younger, fitter man to do it.
How do you keep yourself busy during the daytime now?
Writing, working on the biographies.
Reading? You love reading?
Reading, yes. I try and travel overseas twice a year if I can. I haven’t always succeeded in that.
So it’s been a wonderful career looking back, is that how you would describe it?
I thought if I were to write an autobiography I would entitle it, “Bumbling Through”.
I’m sure that wasn’t the case.
I get the impression some people were able to control and direct their life; I don’t think I ever have. I think I’ve more responded to particular things as they have occurred. Yes, I’ve boasted in the course of the interview from time to time, but that’s probably because great successes have been few and far between [laughs].
Did you think at university when you were going through that you would end up on the Supreme Court Bench? Was that an aspiration?
I can remember that when I applied for the Rhodes Scholarship you had to write a statement about yourself, and I remember saying, “I hope that I would be a Supreme Court Judge.” I then thought when I wrote those words it was fairly pie in the sky. It was sort of an aspiration, but I didn’t seriously dream for one moment that it would be achieved. I came from a family which had no previous association with the law. In fact, I was the first person in the family to go to university, and so I guess it was out there in the dream of fond hopes, but not likely to be achieved.
Look what can happen then.
Thank you very much for your time today. It’s been a pleasure chatting with you.
I hope I’ve done the right things, answered the right questions for you, or answered the way you wanted them.
I think you’ve answered them honestly, which is all we can ask.