ORAL HISTORIES INTERVIEW
Honourable Robert (Bob) Fisher AO AC LLB
By John Emerson on 26 May 2009
It is with sadness that the Honourable Bob Fisher passed away on 8 November 2014.
This is an interview with the Honourable Robert (Bob) Fisher AO, QC, LLB, by John Emerson. The date is 26 May 2009. Okay Mr Fisher.
Well now first of all, I see you put in University degrees. If it is of any relevance, there’s an honorary DLitt from Flinders.
I thought that might be the case.
And then moving on a little, date of birth 19 February, not 19 December.
So 19 February…
1921. Twenty-first birthday on the day of the bombing of Darwin, where I was at the time. You’ve had trouble trying to read my handwriting. [Laughs]
We can start with where you were born, and if you can tell us a little bit about your family background.
Well, born in the house in which I live at the moment, namely 32 Birch Road, Stirling, called Pine Hill. Built by my grandfather – actually, truthfully by my grandmother in 1891 – and always remained in the family. Family background: my father, Guy Fisher, one son, I was the eldest and then three daughters. What else do you want about family background?
What did your father do for a living?
He was a solicitor, had not qualified at the start of the First World War, and enlisted and returned to Australia, having picked up my mother in Cambridge, May Week.
What did she do?
Well she was a young girl at the time, who had been out in France as a VAD working in a hospital for a couple of years during the war. She actually had a South Australian background, in that her mother was the eldest child of Charles Todd.
The Fisher family have been in South Australia since the very first year almost.
Actually in 1838 the first member of the Fisher family from Yorkshire arrived out here. That member actually died in 1841, left the family quite penniless, but the lucky thing was that they happened to be friendly with the new agent for George Fife Angas, who’d arrived to take over from Flaxman. He arrived in 1841, and he in fact had a tremendous interest, in that he had no children of his own. He mentored the next one, Joseph Fisher, of whom I could talk endlessly, having written a little book on him.
That’s right. Perhaps give us a summary of Joseph Fisher.
Would you like a copy of his book?
No, just a summary for the recording of who Joseph Fisher was.
Well, he was the only son of Joshua, the first who arrived, the one who died in 1841. He seems to rather have been taken over, certainly mentored, by Anthony Forster. There was a school in Anthony Forster’s home; he himself was quite a forceful fellow, and likewise Joseph followed on and went into The Register newspaper, where he ultimately acquired an interest. He was the Commercial Officer of that company.
Anyway, by 1857 he’d done well enough to retire from The Register, and set about managing his own affairs. He was in Parliament for short times, both in the Lower and the Upper House. He established at your University the Joseph Fisher lecture in commerce and the Joseph Fisher medal I think.
Is it his house on Fisher Street?
Yes. When he was about 21, he bought – not the house that is nearest the street, but a little more attractive one behind it, and then he built his own pile in 1888.
And that still stands? That’s the house that still stands?
That’s the big house standing. The little house still stands but it’s a single storey one and round towards the back.
Where did you go to school?
Well, as you’ve got above, I was at Geelong Grammar School and then there was a little preparatory school, Wykeham Preparatory School at Belair, we went up and down by train and I was a day boy, but that was for three years.
How was it that you went to Geelong rather than a South Australian school?
Well, first of all my father was at Geelong for two years. But there was a very close friendship between the Fisher family and the Lindon family and Lindon – there were actually two school masters that came out to Australia round about the 1880s. One of them became headmaster of Geelong Grammar; the other became a second master at St Peters College. But he didn’t have a dog collar; in consequence, he couldn’t become headmaster, so he started Queens School.
So you were a boarder I presume for how many years?
And then you came back to Adelaide after that?
Yes, I came back to Adelaide just after the war started, ’39.
What happened when the war started, because that obviously had a huge impact? When the war started had you already started university at this point?
No, it came – at the end of ’39 I came back. The war started three months earlier and went from March then, but things became fairly critical. I remember when the Germans marched into Paris, and a friend and I attempted to enlist in June 1940. We both were under age; we had to put up our ages and I had to learn the sight boards because of my bad eye sight.
One of the crises, for me, was in 1934, at the very stage that I just went to this first boarding school. My eye sight packed up and that was rather a drag.
You went to war that year though, in 1940?
Then you were away for six full years, five or six years?
Yes. Needless to say, I could talk at length on that, but you probably don’t want it. Joined the Army in October, was called up to service in October 1940 and I worked in an AIF unit until I was twenty.
Right, so the war, of course, I suppose that is a huge story. When were you – what’s the term when they – when you leave the Army or the…?
When I was discharged?
Discharged, that’s right. When were you discharged?
In January 1946.
Where were you then?
Where had I been?
Where were you in 1946?
I was discharged, but I had been in Darwin and New Guinea and New Britain.
What did you do when you arrived back in Adelaide, back from the war?
In actual fact, because they were making desperate efforts, it seemed to me, that I could get a commission. I did come back in Anzac Day 1945 to go on to an officer training school, but I never took out the – I passed that, but I didn’t ever take out the commission. So I retired as a Gun Sergeant in the artillery, discharged as such.
Now, at this stage, had you set your sights on a career in the law?
Yes, I had done one year of law in 1940. In actual fact, see, my father was a solicitor in Adelaide, my grandfather had started the firm of Fisher Culross in Adelaide – there as a solicitor. My mother’s father was a solicitor in Cambridge and my mother’s elder brother was a solicitor in London.
I was very interested in it, but didn’t take things like that very seriously, what your future was. I was very lucky, in a regiment, artillery regiment where there were a lot of intelligent people, a lot of lawyers – Arthur Rylah, who became the Attorney General, he was in the regiment. The Battery Commander was George Crawford, who was a Supreme Court Judge in Tasmania. In fact his son is now the Chief Justice in Tasmania. A lot of the younger fellows were lawyers and it just deepened my interest.
We used to discuss – we didn’t come back from that war as heroes; we came back with a very strong determination to get on with life. My friendship with lawyers – and one in particular in the Army – helped me considerably.
Who was that?
That was a fellow called Ian Walker, not in Adelaide. There was only one Adelaide lawyer that I can remember offhand, Bob Swan, he was a practitioner but in matrimonial matters.
When you got back, I think you were taken up in articles very quickly?
Yes, well in consequence of advice from a president or secretary of the Law Society, when I got a bit of leave back in Adelaide in about March 1940, Peter Rudall and I were advised that – as we had passed the first year and therefore for articles it would be wise, even though we were both in uniform, to enter into articles.
Because at that stage, I remember well that we made our decision – his father at that stage was in Tom Playford’s cabinet, I think as Minister for Repatriation of Land. He and I went down to Tom Playford’s cabinet, and Peter Rudall said to his father take me in to articles, and I said to Shirley Jeffries, who was then a partner in Fisher Jeffries, take me to articles.
Well it was about four and three quarter years later before we served a day; my articles had to be extended two years.
So you articled first of all to Shirley Jeffries?
I was articled to him, yes. He was in Parliament, I think, almost the whole of that early time – I think he retired from the Cabinet because he’d had some ill health.
John Emerson: Then there was Bob Irwin.
Bob Fisher: Well yes. After I’d done two years articles in Fisher Jeffries, then I assigned my articles to Bob Irwin of Piper Bakewell. So I had a year’s experience elsewhere, which was an excellent experience because Piper Bakewell was the firm of Frank Piper.
John Emerson: Did you learn any – what sort of different parts of the law did you learn from that experience?
Bob Fisher: I think it was probably very much dependent on the subjects that we were studying then. I hated Torts because of the terrible lecturer there, the only academic lecturer.
John Emerson: That was Professor Campbell?
Bob Fisher: Yes. In fact in the whole year, he spent at the very most – the last fortnight of the year on negligence and nuisance. I was pretty bored with that, but then having had very good lecturers elsewhere.
What I did in articles, apart from my friendship with Charles Brebner, I don’t remember much about it.
John Emerson: Who were the other lecturers?
Bob Fisher: I could tell you them; I made a note of those. The very good lecturers were: Piper, private international law; Pickering, evidence and procedure; and Martin Kriewald in equity. They were good lecturers and fascinating subjects.
John Emerson: Did you ever have John Bray?
Bob Fisher: No. I didn’t – I didn’t really meet John Bray until just a few years before he became Chief Justice. Then I think Edgar Stephens and Ernest Phillips were the lecturers – when I mentioned first of all the very good ones, and they’re the ones that gave me the interest in things.
John Emerson: How many students were there doing the Law degree?
Bob Fisher: Well there were six of them in 1940. There was a great rush of ex-service people came in, I wouldn’t remember how many – 40 or so.
John Emerson: So the numbers increased obviously after…
Bob Fisher: Oh yes, under this Commonwealth Reconstruction Training Scheme, a very generous government kind of invited us all, invited people who hadn’t even attained matriculation to do a year’s matriculation and then come back and do courses at the university.
John Emerson: Did you do your articles with three? Did you do your articles with Shirley Jeffries, Bob Irwin, but also Charles Brebner?
Bob Fisher: No, never articles with Charles Brebner.
John Emerson: He was more of a mentor?
Bob Fisher: Very much. I think he’d had a – some things I say here you’ll have to get rid of eventually – but he’d had a hell of war in that he was the only one that stayed on in the firm actively. I think his marriage had broken up and when I came – I’d never met him until I came in and almost one of the first things he did, he came into the article clerks’ room and said I’ve got a brief in a large case. It concerned the valuation of shares in an unlisted company. And he said come up with me.
From then on I got on with him very well indeed. I’ve made some comment, in those things you’ve read, that my great interest was drinking beer and he drank far more beer than was good for him. So I loved going over and talking.
John Emerson: Whereabouts was the firm located?
Bob Fisher: Here. The firm started off – you don’t really want to know, but in Pirie Street, then went to Grenfell Street, then in the AMP. They rebuilt the AMP building in the 1930s and it came up here. It was nearer the Courts for Brebner. Shirley Jeffries, of course, was a great man in the Methodist Church so we joined him – in his mock gothic building.
John Emerson: You were admitted in 1948.
Bob Fisher: Yes.
John Emerson: How did that change – what was your day to day life like from the time you were admitted in 1948?
Bob Fisher: We got admitted on three years articles and a final certificate – I hadn’t finished the Law course, but at the end of 1948 the three pounds ten a week that the generous government gave us expired. The great thing was then to get a job as a Judge’s Associate, because you got paid seven pounds a week and you can get married on that.
John Emerson: You came to join Justice Abbott?
Bob Fisher: Yes.
John Emerson: How did you find working for Justice Abbott?
Bob Fisher: This part you doubtless will exclude altogether – I didn’t find him at all interesting. He wasn’t really interested in the law and I didn’t have a great deal of time for him. Luckily at that time there was George Ligertwood and Herbert Mayo and also Acting Judge Paine from the Bankruptcy Court and those – for some reason, I can’t – we managed to move round and I worked with all those three. It was infinitely more interesting than…
John Emerson: Did you ever work much with the Chief Justice Napier?
Bob Fisher: No.
John Emerson: How did you find – did you have much to do with him at this time?
Bob Fisher: No. He wasn’t very interested in young people that were born round about the time he became a judge – though I knew his family. They lived in the Hills. I knew Bob Napier quite well.
John Emerson: How long were you an Associate?
Bob Fisher: Twelve months. I see you said, how did you come to join him – I think that by that time Reg Rudall was Attorney General. I think he must have spoken to Abbott and said – because Abbott, when he joined the Supreme Court as a Judge, first of all took up his secretary to work up there with him. It would have been his secretary in private practice and I think she acted as associate. Then his son, Derek Abbott, was his associate. So I was the first outsider he took on.
John Emerson: At the end of the associateship, I guess you went back to Fisher Jeffries?
Bob Fisher: Yes. David Hogarth, whom I’d got to know – probably because I knew his wife, and he was just married and wanted me to come and do running down work with him. I thought that would widen my experience, but fortunately I didn’t get the offer from that firm, so I came back here to Fisher Jeffries.
John Emerson: What sort of work did you start off doing? Did you end up going to Court straight away?
Bob Fisher: Well, the firm didn’t have very much Court work, and I think by the time I’d come back Charles Brebner had left the firm and gone – his eldest son was in articles and he left the firm. He seemed to remain physically here and then established a firm, CC & DM Brebner. That left nobody in the firm who was the slightest bit interested in doing any Court work, so I said I’d give it a go.
John Emerson: Do you remember your first appearance?
Bob Fisher: I remember the most anxious one I had, acting for the Temperance Alliance and opposing the licensing of about three hotels in Port Pirie, I think on the ground that a hotel is a nuisance and annoyance if it happens to be next door to a school or church. All Adelaide’s leading silks were up there at the time.
John Emerson: Who were there?
Bob Fisher: There were Alderman, Brazel, Travers, Pickering and Ross. So I was in opposition from time to time against each of those.
John Emerson: And it was only you?
Bob Fisher: Just only me, two pounds a day.
John Emerson: How did you fare?
Bob Fisher: Well, I knew all my witnesses would be good solid Methodist church people and I arranged a meeting place in the front bar of the hotel. I struggled on. I learnt a lot. I learnt how good people can be to you.
John Emerson: Did you – what was the result?
Bob Fisher: I lost of course. I think I put up an argument as to what was the basis of the jurisdiction. I can’t quite remember, a little expression, it was not necessary, reasonably required or something like that.
John Emerson: How did the Queen’s Counsel treat you; were they…?
Bob Fisher: Very friendly. I was very lucky you see; I’d had this time in the Army and you learnt how to get on with people and not take things too seriously. You became very determined in the Army, very committed and so I suppose that might have been – hopefully the way you appeared as a young person too.
John Emerson: It sounds like the Army might have accelerated your growing up process perhaps?
Bob Fisher: Yes, I badly needed acceleration. I think I was a very immature young man. You see, the great Headmaster Darling at Geelong taught us all a social conscience. “He to whom much is given, much is expected.”
The Army, I think, made all the difference to me, so I came back determined and capable of looking after myself.
John Emerson: How did your career progress after you took on the hoteliers?
Bob Fisher: Well, one of the great advantages of leaving Fisher Jeffries and going to Piper Bakewell was Frank Piper. I worked for six months with him and he wasn’t even a silk at that stage but he had a great relationship with the Executive Trustee. That’s where I gained this tremendous interest in equity, and Frank Piper was most enthusiastic.
In fact he did form, informally, kind of junior bar of equity barristers with Sam Jacobs and Charlie Bright and people like that.
Frank Piper, of course, because he did a tremendous number of applications to Court on originating summons for interpretation of wills and settlements. And there were always extra people to be represented and therefore we got junior briefs, for yet-born children and things like that. That was a great encouragement and that was where you set your sights.
I only did one criminal matter on the Poor Person’s Scheme in a plea of guilty. I remember of course I thought he was a great chap, and I found that he later broke out of gaol and so I lost my interest and I never did any matrimonial. I suppose I did a couple of undefended divorces.
John Emerson: But more or less…
Bob Fisher: Equity and commercial work, and started to develop a great interest in income tax because I was lecturing from some time in the ‘50s on income tax down in the – it was the School of Mines I think then.
John Emerson: So over the course of the ‘50s I think you developed quite a solid career at the Bar?
Bob Fisher: Well I had no alternative, having just got married. There was no money in the law at that time. I think your interest and enthusiasm became apparent and other people were prepared to help.
John Emerson: When did you first appear in the High Court?
Bob Fisher: I don’t think probably until the 1960s. I can remember – it’s a long time ago – I was getting Court work, particularly for a Taxation Board of Review in income tax. I can’t remember when my first appearance was or what it was on.
John Emerson: During your career I can’t help noticing remarks about the fact that you and Sam Jacobs tended to start to…
Bob Fisher: Well we were, yes, and I still am friendly with him, but in this – see he got a silk before me. He was always a far more mature person, but we fought against each other in these junior briefs that Frank Piper turned up. Then as I became known at the Bar, he was on the other side in a tremendous number of cases and we became close friends.
John Emerson: What was your winning rate like; were you comparable?
Bob Fisher: Better than Jacobs, I felt. No, I really had a pretty successful run. I told Jacobs he was a young man in a hurry going off to the Supreme Court in 1973, but he still would have lost because he was involved in both of the big first cases there. He still would have lost.
I think Jacobs was a bit more, perhaps, more public spirited. He was a Mason and he always – whereas I had just this tremendous commitment. You worked every night at home. After a while your wife would say, now can I talk. And then the cases you were lucky enough to get, particularly if you got them from outside the firm, if the firm had them, then you had your juniors or other members of the firm; you couldn’t bully him as you could the outsiders.
John Emerson: So you were briefed from both inside and outside?
Bob Fisher: More from outside, as you went on.
John Emerson: This was even before you were silk?
Bob Fisher: Oh yes. I didn’t get silk because - I think in 1963 when Jacobs and Ligertwood got silk, and then almost after that they said I was going to get silk. Then there was all the delay of the Elliott Johnston business. I think I was approached to take silk in 1968 and even earlier than that – informally approached, but didn’t in fact get it until 1970.
John Emerson: What do you understand about that situation? What do you understand happened with the controversy with the silk appointments in 1970?
Bob Fisher: The Government changed hands. I think it was Steele Hall. He was very strong and because we were – I always felt a good competent fellow like Elliott Johnston, he could get it.
But there were various moves made during those years to persuade us – you see, what Bray did, he put up three of us. When Steele Hall wouldn’t have Elliott Johnston, Bray said well – and we were individually called up there - I put up three, I’m withdrawing those three now. And there were kind of odd moves from the Government to seduce us to ignore Bray, but I’d got to know Bray at that stage, having briefed him, and our loyalty lay with him.
So it was only – and it was almost an issue in an election. Perhaps that election was in 1970.
John Emerson: I think it was.
Bob Fisher: And I remember that the matter came up. Then as soon as Dunstan got in – no earlier, I know there was some arrangement between Bray and the Government. In consequence of which – this is in round about May 1970 – Bob Ward and I were appointed and Elliott Johnston wasn’t appointed until after Dunstan got in, the first thing he did.
John Emerson: How did life change once you were appointed silk; what impact did that have?
Bob Fisher: I don’t think it made much difference at all. You got a different gown. Somebody gave me – I don’t think it made much difference. You already were doing the top civil work.
John Emerson: You stayed with Fisher Jeffries right through.
Bob Fisher: Yes.
John Emerson: At that time the independent Bar was slowly developing, did you ever consider…?
Bob Fisher: I would have loved to have gone, but you see life for young people just after the war in the law had been rather tough. And the firm were good to me and then we had lots of nice young men coming in as associates, young fellows staying on in the firm who had young families or families to educate. Sam Jacobs and I both felt that it was just unfair of us to dump them, dump the firm. The loyalty to the firm remained.
It would have been lovely – I go round now to see how the Bar behaves, and it would have been lovely to have been a member of the Bar. But you’re loyal and there’s so many young people see us – I saw one fellow over in Tasmania who always felt very much that the firm was looking after him. I remember all the arrangements you made about your earnings still to flow. Your primary interest is to help the firm.
John Emerson: That makes sense.
I’m interested in how you approached a brief. For example, when you first got a brief, what sort of process did you put into play to work out the best way to go about it?
Bob Fisher: You read it and you thought about it, and you read widely around – researched it in very great depth. I always had – I used to say my approach to winning a case was to convince the old chaps on the Bench of the justice of your side, and then indicate to them that as the good lawyers they think there are, there is a way in law to get there. So I used to work up things with great intensity.
John Emerson: You came across, even Sam Jacobs, I guess – you must have appeared before Sam once you…
Bob Fisher: One of the last cases I did – and he came down my way, and then appealed to the High Court. I’d left at the time so I got to know Murray Gleeson; he lost at my Court.
I don’t remember many cases individually before Jacobs. He might have been a member of a Full Court on occasions.
John Emerson: So you obviously just – your method was successful. Did you find the judges varied though? I suppose individual judges vary a lot. Did you find, for example, Bray was a different judge than someone else?
Bob Fisher: Andrew Wells. Yes, well you had to adopt your approach. You can’t be dogmatic before Andrew Wells. Bray was a lovely fellow before whom to appear.
John Emerson: At this stage you were appearing I think every time the High Court came to Adelaide?
Bob Fisher: Yes.
John Emerson: Someone made the humorous comment that it was the Fisher list when the High Court came.
Bob Fisher: I did have an awful lot. See, there was a great burst of tax cases. In the 1970s mining had become interesting and there was the juggling of shares, the Tax Department’s involvement, so there was a lot of single judge High Court work and then Full Court matters.
John Emerson: I think you went to the Privy Council.
Bob Fisher: Yes.
John Emerson: When was that?
Bob Fisher: The first trip to the Privy Council was in a junior brief with Keith Aickin leading, in an attempt to get leave to appeal against a Full High Court decision in Morphett’s case. The question we put was the difference between vesting in interest and vesting in possession, with Keith Aickin leading. I got to know him very well and became very friendly thereafter until he died.
That was the only case we lost in the Privy Council.
John Emerson: What year was that?
Bob Fisher: 1967. Do you remember him, that fool, Manningham-Buller? He presided over the Privy Council. He was awful. He was quite disinterested. There were a number of judges who could have been – I’ll tell you what happened. It had been announced, about the time we went over there, that the High Court – that the Australian Parliament was withdrawing the right for appeals to the Privy Council, when the point involved was interpretation of Commonwealth statute, which it was.
John Emerson: In 1967, how did you get to London; did you fly?
Bob Fisher: Yes, flew some flight that went round through South Asia. It seemed to stop every now and again and always another hot meal was served. I can remember that trip over.
John Emerson: It would have taken a little bit longer I suspect then.
Bob Fisher: It took quite a while.
John Emerson: How many times did you go to the Privy Council then?
Bob Fisher: Six times.
John Emerson: What were the next five?
Bob Fisher: The first one was the case of Amoco Rocca, you know that one?
John Emerson: I’ve read a little bit about it.
Bob Fisher: I wasn’t involved in the first instance, first hearing. It was before Andrew Wells, and he came down very definitely, very dogmatically. They briefed me then for the Full Court, where we turned Andrew Wells upside down, and then we went to the High Court – or they went to the High Court. Sam Jacobs was still involved at that time I think.
John Emerson: Who were you representing?
Bob Fisher: I was for Rocca, the small person. It was almost the forerunner to the Trade Practices Act, excess use of power, and you see we got Bray, who was very sympathetic. He accepted my quoting sheet – piles and piles of figures. I remember Jacobs saying to me that brief would kill me. Well, I was going to kill him.
Then it went to the High Court and David Angel was a junior there. Then they went to the Privy Council in early 1973 seeking leave to appeal. I discovered tucked away somewhere Alexander’s case, which says that from a State Court you then have a choice; you can go to the High Court, or you can go to the Privy Council. You can’t go from one to the other. I was opposed by Peter Oliver at that stage, still a Chancery silk; we won on that and they did not get leave to appeal to the Privy Council on the principal issue.
But there was another aspect of the case – at the moment I really can’t remember what it was – where they had got a certain issue determined by the Supreme Court. So they got leave to appeal on that issue and that came on for hearing at the end of that year, by which time Peter Oliver had joined the Chancery Court.
So there were those two trips that year, and then there was the other case, which was Lady Becker against the Director of Planning. That was the time when I’d lost three times in succession. I had lost before the Full Court – I must have lost before a single judge, I lost before the Full Court. We applied from the Full Court to get leave to appeal to the Privy Council, and they refused that.
Fortunately by that stage I’d already had some success. I remember sitting down here writing a little – I recommend an appeal to the Privy Council - and went out for a walk to get and met Roma Mitchell. I said we’re appealing to the Privy Council. Good on you, she said.
So we went to the Privy Council in early 1975, and of course I wasn’t even seeking leave to appeal. I was seeking leave against the primary – seeking leave to appeal against the Full Court’s decision of refusal to give me leave. And having won that – Diplock was presiding, and I seemed to get on very well with all these people. They all had a sense of humour; you could chat.
And he said well now, we’re looking forward to seeing quite a lot of you, Fisher. It’s going to be about another three trips before you get to the main point. I said lovely for me, particularly at this time of year. And he said, I’ll tell you what we’ll do. You come across next time armed with three arguments. If you win the first, we won’t need to hear you on the second. If you lose the first, we have to hear you on the second, and then we come to the main point on the third.
That’s exactly what happened and then I remember – sorry, one of the first – when we got leave to appeal, we then immediately got stuck into the merits of the case. Then there was an English silk there, whose name I’ve rather forgotten, leading quite a team. Brian Cox was there, and then they didn’t call on me in reply.
I remember it wasn’t – that’s right, there was an English silk who I became very friendly with at the time: Leo Price, a Welshman. He took me down to lunch in the Middle Temple I remember. And you didn’t do lunch with the Benchers, not with the hoi polloi – because I think I challenged one of them; I said what’s it mean? He said I reckon you’ve won. So we won that one.
John Emerson: What was the case about?
Bob Fisher: Well really it concerned the entitlement to subdivide land which was just in the Hills face zone to the south of Adelaide, just beyond kind of Flagstaff Hill area, up that way. There must have been a lot of points – I remember I used to write down what all the points were – six points and then three judges, and they never agreed. So I would say, on this point, I’ve got two of them my way. I think it was terribly dull in many ways, compared with Amoco Rocca or the will cases or taxation.
John Emerson: What was the point that you reckon got you over?
Bob Fisher: I really don’t remember. It probably could be, why shouldn’t he –you probably hadn’t heard of old Ellerton Becker. He was a very wealthy fellow. He’s the first person who used the discovery about trace elements in the South East, and he bought a vast area of land down there and he also – I had a tax case for him I think also.
John Emerson: We got to the…
Bob Fisher: How did I come to join the Council of the Law Society? Round about the end of the 1940s they changed the constitution of the Law Society and decided to have two representatives of the junior – probably say less than five years. I remember Charles Brebner. He must still have been alive at that time, because he told me – but Brian Magarey and David O’Sullivan got it. Then I remember him ringing me up – this was in 1949 – when he first came to say well now, Magarey’s too old. We’re putting you up as the next one. I think they got that for a number of years.
John Emerson: Who was the – how did you find that? Did you turn up regularly to the…?
Bob Fisher: I turned up very regularly and I did an awful lot on the Poor Persons’ Legal Assistance Scheme, which was the greater part of my Saturday morning, working reading the vast files. I was out of my depth; I just sat back and listened all the time.
John Emerson: If we just momentarily go back to the 1950s, we sort of mentioned Harry Alderman.
Bob Fisher: Yes.
John Emerson: I just wondered what you remember about some of the dominant characters at the Bar?
Bob Fisher: Well, I remember Frank Villeneuve Smith, that whenever he was speaking – and there was one of the very last social divorce cases. You all traipsed up there to here Frank Villeneuve Smith talk. He was a very much kind of running down type of lawyer, a great manipulator.
There was a very big case that eventually – that’s right, Sam Jacobs briefed me as his junior for the High Court. It was a case where a trustee officer at Elders omitted to exercise a very valuable option. He ended up stringing himself up. We won against – something against Elders Trustee. I remember Sam Jacob said that the statement of claim in this matter read as rather a running down matter. We won that and got judgment of more than Elders Trustee’s paid capital.
John Emerson: What year was that one?
Bob Fisher: I’m getting out of my depth now; I don’t remember dates. Obviously it was late 60s or very early 70s. Sam was a silk, I wasn’t; I remember that.
John Emerson: And the name of that case would have been something Elders?
Bob Fisher: Something Elders Trustee – farming family. If you see Sam Jacobs, he’ll be able to tell you. He’ll probably tell you that I found the case that won the matter for him. Still, we’ve got a healthy opposition.
I used to say to him you’re at your most vile today, let’s come and have lunch together. You pick the fellows – I got to know Mayo, and Ligertwood was a marvellous lawyer, marvellous Judge. Somewhere down here I made – you said what cases stand out. He was judge in the Cartier case and that’s – Chamberlain was a tremendous prosecutor.
You see, a lot of them were dying at that time. People who I noted who had a great influence on me were Frank Piper, for example, Bray, because of his tremendous sense of justice and – but I only got to know him in the last year. Jack Astley was no barrister, but a leading member of the legal profession. He used to be on me every time I took a company to registership: remember you’re a lawyer.
So when I took silk he was up here, he walked down, put his hat on and walked down to see me, and he did the same when I went on the Bench.
Wells was a – I got to know him very well indeed – he was too dogmatic for me. He had a marvellous background in the law but I wouldn’t have followed his way of advocacy or as a judge.
John Emerson: Right.
Bob Fisher: Brian Cox was very good in the criminal area, a bit out of his way, when he was on the Privy Council. And then Dick Blackburn is a personal friend of mine. He came, you see, from the Law School to working at Finlaysons up here.
John Emerson: Did you have much to do with Christopher Legoe?
Bob Fisher: Yes. Having come back after the war I remember him. I seemed to know nobody around, and I had to go to a wedding that I knew nobody at. Chris Legoe was a young boy still at school, and I rang the Bar, so I had an interest in him. Then when he came back from Cambridge, he didn’t know what to do; we gave him a chair and a desk for a time in the lavatory here.
It was very much – I’m very fond of Chris, but not really a lawyer. And when he got silk and he was involved in a tax case, I can remember – he went on the Supreme Court Bench about the same time as I did.
John Emerson: That’s right, in 1978.
Bob Fisher: Yes and I can remember going to dinner with him; I said Chris, for how long have you been appointed? I assumed you’d been appointed an acting lawyer. He wasn’t one of the great lawyers.
John Emerson: It’s always interesting how appointments work; it’s a bit mysterious sometimes.
Bob Fisher: Of course, extraordinary ways. Well, Bob Napier’s appointment as a silk and Eric McLaughlin made a laughing stock of the whole system.
John Emerson: You must have known – did you know much about what was going on there? Because you knew Bob or at least a little bit…
Bob Fisher: Who?
John Emerson: Bob Napier.
Bob Fisher: Yes, well he lived not far from us and I used to drink with him, but that was a disaster for him, quite apart from a disaster for the system. I think, see Napier was getting very old and wanted to have Robert. I think that Joe Chamberlain said at the time well I won’t vote for Robert unless you put Eric McLaughlin. Well…
John Emerson: Both of them weren’t really…
Bob Fisher: No.
John Emerson: I think it was a disaster, certainly for Bob Napier, because I think for the next ten years it – I don’t think he got very much work.
Bob Fisher: Well I know – it was not a very interesting case, Hudson against McBride, one that I ran. I was for Mrs Hudson, who was a McBride, and there had to be a brief for her daughter, who got a legacy. So that separate brief went to Sam, with instructions that he had to brief Bob Napier. And the case came up and I was sitting down there, and I think I managed to get Sam next to me and then Bob Napier.
I remember that we lost that in the High Court, but that didn’t matter much to us.
John Emerson: Around this time, also, you were getting a lot of directorships or members on companies.
Bob Fisher: Yes.
John Emerson: You must have had a very busy life; you must have been very busy?
Bob Fisher: Yes, but they were my relaxation. You may not want to quote that. All you had to do was read and listen to what other people did. They loved to have a silk on the board.
John Emerson: That was really only a matter of turning up at the meetings, not…
Bob Fisher: And working – your board minutes, etcetera.
John Emerson: When did you get involved with the Flinders University?
Bob Fisher: Way back. Flinders was established I think in 1967 by Peter Karmel. We had tremendous regard for him, and then Don Laidlaw was the Parliamentary – was a representative. I think he went into Parliament and therefore he had to drop out. And about 1968 or 1969 I became a member there.
John Emerson: You stayed with the Flinders University for quite a while?
Bob Fisher: Yes, I did a worthwhile job there. I was Chairman of the Finance and Buildings Committee with Peter Karmel there, who dominated – who ran the show, and Keith Hancock, who was very good indeed. I chaired that for 14 years and that was quite the best job I could do down there.
Then when Charlie Bright became Chancellor, I became Deputy Chancellor, excepting that I had to – everybody left and I had to preside over the Council, at the time they had the trouble at Flinders and they were throwing crackers at us in the Council. It was easy for me to get away with that, because I told them they better try a bit harder. I had been insulted by far better authorities – members of the High Court. That shut them up for a while.
John Emerson: That’s right, it would have been a very interesting time. Flinders University seems to have been where there was a lot of trouble…
Bob Fisher: They had the American Vice Chancellor, who wasn’t much good and he was being challenged I think, of having involvement with the CIA or something like that. And Brian Medlin broke in and stole papers. But then, the people who ran the show were a moving group, travelling round through the university generally.
John Emerson: Did you know at the time that Brian Medlin was one of the very closest friends of the Chief Justice?
Bob Fisher: Yes and I know Harry Medlin. I think that – he was one of John Bray’s drinking group in the Sturt Arms I think.
John Emerson: I can’t help wondering, if Sam Jacobs was of course on the University of Adelaide Council and you were on the Flinders University Council, did that cause any humour, any competition or…?
Bob Fisher: Well you see, he had been far, far longer and very intensely involved. Sam had a bad run. He should have been Chancellor of Adelaide, and he didn’t get that because of the fall out with Harry Medlin I think. He could well have been Chief Justice. He missed out on a few jobs. I managed to slide, rather against my will, into Chancellor at Flinders when I was on the Court and travelling interstate all the time.
John Emerson: Finally, you were approached at some point to join the Federal Court.
Bob Fisher: Yes.
John Emerson: As the first South Australian to go on the Federal Court?
Bob Fisher: Yes, but there was no Federal Court in South Australia at that time. So I had to set the whole thing up from a little room in the AMP Building, about quarter of the size of the associate’s room in the present Federal Court.
You’ve made some comment here about Harold Salisbury.
John Emerson: That’s right, yes.
Bob Fisher: I was looking after Harold Salisbury, but I was never involved in the Royal Commission because I really got on with him very well, to stop him cutting his own throat. He was very down and miserable and then wangled his retiring allowance from the State Government. And just as I was doing all of that, a message came from the Federal Attorney-General, who was Peter Durack at the time, when I joined the Federal Court. I said what’s that Court? You don’t mean the Family Court?
Then the South Australian who was the Chief Legal Officer here whose name – Fisher Jeffries – Fisher whatever - did the Commonwealth work right up till the 1940s. They had an office down at the end, actually on the end of the third floor, and he was the head of the legal department there. He rang up and said you’ve got to take this for me, the first South Australian for the Commonwealth Court. So I remember going round being very upset in the Salisbury home, and said I’m sorry, I’m going on the Bench. And his wife said why did you come to tell us you were going on to the Bench?
He didn’t kind of quite understand – I became very friendly with them. I used to see him again in England. He was a fine fellow but he was quite misguided.
So I very happily – I think I turned up on one occasion before the – with Sam Jacobs’ partner at the time, Derek Bollen takeover I think.
John Emerson: I think you were appointed 18 April – no, that was a little bit after. When were you actually appointed to the Federal Court?
Bob Fisher: I wouldn’t remember.
John Emerson: The proceedings…
Bob Fisher: I was welcomed in Sydney. It was only when they then came for their first visit to South Australia, which mainly seemed to concern matters in which I’d been involved. That’s right, the tax matters, the Taxation Board review then could come to the Federal Court…
[END OF RECORDING 1]
…disqualified, but according to Nigel Bowen, for whom I had a tremendous regard – he was a great equity lawyer and had been a very experienced politician. Peter Durack was rather slow. If only he’d appointed me at the time when they discussed that I was to be, I would have had a life time appointment, but I missed out. Then there was a referendum and it wasn’t until about the Christmas holidays in 1978 that I got the call.
Where did you hear trials? Did you have a building or somewhere you could hear them in Adelaide?
There was the bankruptcy room in the AMP building. I was there for years. I think they were then suddenly the Black Stump.
You were quite some years at the AMP building?
Yes and my bailiff work was South Australia, Western Australia and Northern Territory. We used to look after the West Australians after work over there; they’d get on a plane and come over here in the evening, and get them home at night.
You would never have appeared in the Federal Court, because the Federal Court I suppose took over a lot of cases that were…
I did have an appearance in Melbourne before the Federal Court. I remember Reg Smithers presiding, getting leave to appeal in some tax case, which only came on for hearing after I’d been appointed. That’s the only thing – I didn’t know what this Federal – I remember what I did was to speak to Nigel Bowen. I said I’m coming over to see you. What’s all this about? While I was in the plane I made a list of questions. I had a great regard – he did a wonderful job. Not such a good one at the moment.
How did you approach being a Judge? How did you find that experience?
I just shut up and listened. No – and it was some criminal matter. I sat with Nigel Bowen – this is when they met me, I can’t remember, a month or so before that. And Dick Blackburn – see the Chief Judge of the Territory Courts immediately became Judges of the Federal Court. I remember that Blackburn and Nigel Bowen got their heads together and told me to write the judgment. They of course, gracious fellows, told me what a good job it was.
Did they just concur?
Yes. Nice start.
What was it like writing your first judgment? You sort of had to think about…
Well, I always wrote my judgment out by hand. Frank Kitto said, concentration is on the tip of the pencil. Fortunately very shortly after I was appointed my secretary from here, came over to the Commonwealth – see, she could read my handwriting. I never used any of these recording things.
You never dictated, you always wrote?
I never dictated, I always wrote it out, yes. Because it is very intense about it – you settle down and then write it out. Of course the word processor suddenly came; it was the only help. That meant if you make a mistake on the first page, you could amend it and not have to retype the whole thing.
You were a Judge until 1989?
I think I retired a little bit before my 70th birthday, because a year or two before John von Doussa left the Supreme Court. So the only help I got – and it wasn’t much help – was Bill Foster from the Northern Territory. He was sick and he had to return to Adelaide. He joined me in the Federal Court and then John von Doussa came, and then I had to go, say in about eight months’ time or something like that.
Nigel Bowen accepted my suggestion it should be Maurice O’Loughlin, and so I spoke to Maurice and I said I’ll leave the Court when it suits you to leave the Supreme Court. And it happened that I was a few months under seventy.
At this stage there was – how long were you by yourself in the Federal Court here, how many years?
Well strictly – because Bill Foster had been Chief Justice up there and he wasn’t really au fait with the work, I was almost by myself until John von Doussa came.
That was about 1988, pretty well just before you…
Yes, so very much the lonesome job, though you see Nigel Bowen was very good. He’d ring up and say, well, got a nice tax case coming on, come up and join the Court. And you see I did an awful lot of income tax work with the Federal Court, with Gerry Brennan and Bill Dean, when they were judges…
Lawyers well beyond my team. And I remember that I did dissent in one tax case, the two others being Brennan and Dean. It went onto the High Court and I won. They were good judges, particularly when they were on the Federal Court under a good leader. They were a little bit opinionated when they went to the High Court, bleeding hearts in Bill Dean’s case.
So I sat an awful lot in Full Court, which gave me – then Nigel Bowen went to rescue me from here. Come over and do a week’s work in Sydney or Melbourne or Brisbane.
So you must have travelled quite a lot?
I travelled quite a lot, yes, and that’s why it made it really impossible to do much at Flinders in my years as Chancellor. I could always ensure that I was available for the Council meeting and the briefings, etcetera, but very seldom for the academic lectures and things on Friday night or any week night.
But a very good Vice Chancellor – very good Deputy there was Deidre Jordan, she had a little formulae she used.
Going interstate like that, you were spending so much time interstate, did that do anything to alter your perspective of the wider legal professions across Australia?
Yes, yes, well I mean, I met the Bar. The best Barrister I ever heard was Murray Gleeson, he was still at the Bar.
It would have given you 10 years or more almost working interstate, whereas before you were – I suppose you were working interstate – you were still doing a lot of High Court work.
Only in Adelaide; I don’t think I ever did the High Court – I never appeared in Taj Mahal. I did High Court work in Adelaide, single Judge in Full Courts.
Have we covered most of what we want to cover, I wonder?
You wanted cases that might particularly stand out.
I suppose looking back now…
Looking back now, the first one was Estate of Louis Frank Cartier, deceased, and he died intestate. Now he didn’t have an effective will. The question really was – he had acquired a domicile of choice. I said he had abandoned that and therefore his domicile of origin revived, and that was Mauritius – we had the Code Napoleon at that time.
That was the case that Frank Piper said now this is going to be a big argument, Fisher, you can argue for the family. And it went on for years – not the hearing, before Ligertwood.
That was over the 1950s obviously?
That was the first substantial case, my first really successful one that I can remember.
What was the name of that one again?
The Trustee and Oxer I think; it was the Estate of Louis Frank Cartier.
And Cartier like the jeweller, that same spelling?
I just can’t remember much about it. I don’t think he was ever in South Australia – I suppose he must have been – I don’t know. I said that he died intestate. I think that under the Code Napoleon, no man can ever marry a woman of whom he’s been found to be guilty of adultery or some strange thing like that, which confused us all.
That was before Ligertwood and he enjoyed it, and I think it was pretty early on. I remember Frank Boylan filed the – the present District Court Judge was George Ligertwood’s associate. And then the next one – there was a very interesting one, August Investments against Poseidon, at the time of the great boon in Poseidon.
And before it sort of got really high, Poseidon Directors decided to allot shares to friendly companies, and they stated them for the purpose of retaining control. That was, on my argument, obviously invalid.
But I had a fellow, Ganke, Boris Ganke, from Sydney, the head of August Investments. Full of enthusiasm, then we got to the fight, then we appeared to settle it, and he said no I’ve changed my mind, I won’t settle on those terms. And that happened about three times.
I happily managed to arrange to be sacked by him and then Sulan heard the case and he wasn’t much help. He thought it was going to be a wonderful authority.
A few weeks at most up, he called the parties in. He said I’m staying here in my Chambers overnight until you settle this case. We stayed there until about four o’clock in the morning, but that was – that and two before the Privy Council, Amoco and Rocca…
They were the main ones that you remember?
They’re the ones that I particularly remember as being at the time.
There was a chapter published in the Adelaide Law Journal on the Amoco case a few years after it appeared. I think it was in the 1980 issue and I remember trying – I’m not legally trained, so when I was trying to…
No, I studied lawyers.
Did you write this article?
No, no. I can’t remember who wrote it, but I remember trying to get my head around what was happening with Amoco and Rocca. It seemed as though Rocca had owned a service station and then sold it to Amoco, who then leased it back, something like that?
Something like that, yes.
And then the problems began from there, but it just seemed to have this sort of complex arrangement.
It was a complex arrangement and then – I’ve really forgotten the facts at the moment, but they purported to determine the lease on certain grounds and take out the bumps. It was almost the start of the days of the Trade Practices Act.
You see, the Trade Practices Act only came in when I was on the Court. So we really had to set about establishing – and a lot of the work I did in South Australia, was trade practice. Then actually after I left the Court I did about eight years mediations in Adelaide privately, just because I thought people were wasting time and money on long running cases, and I’d had experience with both of that on the Court.
If you looked at people’s pleadings, you could pick up an allegation of misleading and deception.
You’d say forget about all the rest of the pleadings, all the other causes of action. If you can’t win on section 52 you won’t win at all. And there were only two simple things – was it a misleading statement? Can you establish you relied on it? Then away you go.
So I did that for about eight years because I wasn’t really ready to retire, and that’s when I set up these Chambers here.
What sort of mediation, across what disciplines then did you – across what jurisdictions rather?
Well again taxation was helpful, judicial review – of course it came in when I was on the Court and Trade Practices. And I did a few arbitrations, things like that.
How are we going?
Have you got enough nonsense?
I think we can…
I can’t tell you about how the profession changed in consequence of war; I was never involved in that. It seemed a shambles in the firm Fisher Jeffries because Brebner was the only full time one.
Perhaps the other change in the – it was in the late 1970s when articles were phased out and…
I wasn’t really involved in that, no. Yes, we still had – well I think we still had some article clerks when I left. We had a reputation. We had some very good firms over here.
I suppose one of the last things I’m curious about: I didn’t ask you how long were you on the Council of the Law Society.
See I just don’t remember. But I do remember that – it’s again one of these things between ourselves – that was fighting with Keith Sangster in the Court. He wasn’t an easy fellow, and then there was a question of me going on to the Executive and he was going to be President. I thought it was time I should gracefully retire and let Don Brebner take my place.
I mean, I was on for eight to 10 years I should think. That’s right – I’d ceased to be representing junior practitioners, and then with the profession in general I was re-elected in those years.
Right, okay, well let’s end it there.