ORAL HISTORIES INTERVIEW

Honourable Samuel Joshua Jacobs AO QC

By John Emerson on 23 May 2009

This is an interview with the Honourable Samuel Joshua Jacobs, AO, QC, LLB, Doctor of the University from Adelaide and Doctor of the University from University of South Australia. The date is 23 May 2009.   The Honourable Sam Jacobs was born on 6 December 1920 at home in Glenelg. He rose through the legal profession, and was appointed Queen's Counsel in 1965 and a Supreme Court Judge from 1973 to 1990. He presided over the Royal Commission into the collapse of the State Bank over the years 1991 to 1993. He was the President of the Law Society of South Australia from 1972 to 1973. Apart from his contribution to administration of justice, he served education on the Council of the University of Adelaide where he was Deputy Chancellor from 1984 to 1992 and Deputy Chairman of the Council of Governors of Scotch College from 1970 to 1987.  Sam Jacobs also saw active service as an officer in World War II, from 1940 to 1944.

I was born at Glenelg in 1920 and spent my boyhood in a happy family background. The family moved to a house in Unley Park. I was enrolled at Scotch College when I was eight years old and I stayed there until 1938 and my last year at school when I was, in fact, Captain of the school. 

I've often been asked how I came to study law and I've never been able to give a satisfactory answer. My grandfather took a law degree at Melbourne University, I think in about 1878. He did sign the role of practitioners in South Australia but apart from a very brief stint in a small legal firm, he never really practiced law. He chose a career in business and commerce. I do recall him saying at some stage that he thought a legal training was a very good asset for mental discipline and logical thinking in other occupations. 

I went to the university in 1939 and started on a law course which was subsequently interrupted by the war. The teaching at the university then was very different from now. There was only one full time academic, Professor Campbell, who in fact didn't have a law degree himself but he held a degree in engineering. He had been associate to Edmund Barton who was one of the first Justices of the High Court.

He lectured himself in the elements of law and legal history and in torts and in contract, but all the other subjects were taught by members of the legal profession. Do you want me to name them?

Yes, that would be very interesting.

Earnest Phillips taught commercial law and Mr Edgar Stevens taught equity. Lou Whitington taught company law and bankruptcy. Frank Piper taught private international law. Dr Bray and Ralph Hague taught in the jurisprudence and Martin Kriewaldt taught property and for a while, I think, Arthur Pickering taught evidence. I think that the criminal law was taken up by the professor as a sub branch of torts. 

The war, of course, interrupted my career. I completed my first year but in my second year I was sent to an officer training school and was then after commissioned and posted overseas. So far as the profession is concerned, it almost decimated the profession. It was not a reserved occupation and the only persons who were able to continue in law courses were those who for one reason or another were either unfit for or exempt from military service. 

Was there an age limit, for example, when they were looking for men to go off on active service?

No, there was no conscription at that stage but I think that most people of my age had been involved in school cadet corps or things of that sort, and we sensed that war was imminent because of the activities of Hitler in Europe, and most of us joined the CMF in anticipation that war was almost inevitable. It was as a member of the CMF that I was selected for the officer training corp. I was then engaged on military service until I was discharged on medical grounds in 1944 and resumed my legal studies, partly by private study because the law course at the university was under-staffed and under-manned.

I believe even some of the lawyers who were lecturing, like Ralph Hague, had gone away too. 

Yes, yes. The war had quite a marked impact on the strength of the strength of the legal profession. After the war, of course, the law school built up again very rapidly. I do recall that in about 1950 the then-president, who was Mr Ross Casey at that stage, issued some sort of a warning that the profession was likely to be overcrowded. That was a very unwise public statement. It was only a natural growth from the wartime slump and led to a sudden decline in enrolments. So the strength of the law school was up and down and up and down until it attained some equilibrium and really recovered from the rather unwise statement that the president had made.

I was admitted as a practitioner in 1946. I had in fact signed articles of clerkship on the advice of the then Mr George Ligertwood KC before I enlisted and so I was an article clerk, and because of that I was given some credit for war service and was admitted to practice without having served the full statutory period of articles. I was granted an exemption, and in fact became a bit of a leading case for those in a similar situation to myself. 

When you were first admitted, was that when you joined Brown Rymill & Stevens?

No, almost immediately after my admission I became an associate to Sir George Ligertwood and later to Sir Mellis Napier as Chief Justice. That was a very interesting experience because you saw the profession operation from both sides of the Bar table. You saw how judges thought and responded and conducted cases, and conversely how cases were either well or badly presented at the Bar.

Ligertwood and Napier were really quite different. Ligertwood was a very distinguished lawyer. He'd been leader of the Australian Bar before he was appointed a judge. I was sometimes critical of him because he didn't use his legal ability. There was a tendency then on the part of all the judges to defer to the Chief Justice, Sir Mellis Napier, who had been a judge since 1923 when he was appointed at a very early age, and he was deferred to as it were as the leader of the court which I thought was unwise.

I believe that he'd been on the bench for over 20 years before he was ever in a dissenting minority and Ligertwood would often defer to the opinion of the Chief Justice even if he didn't share it. Napier, on the other hand, when I was his associate, we'd had a long, long experience. He once said to me that he'd reached the stage where he didn't have to consider any point of law for the first time, he'd done it all before. He did tend to make up his mind very early - not exactly on the pleadings, but he was less ready to listen to the argument of Counsel if he'd taken a preliminary different view.

How did he treat Counsel? Did you notice any difference between the way he treated Junior Counsel and Senior Counsel?

No, I think that most of the judges at that time were courteous to Counsel. There was one exception, can I mention names?

Yes.

That was Mr Justice Abbott who was a bit of a bully and often gave Counsel and witnesses a bad time. Indeed, I once appealed against a judgement of Abbott on the basis that he'd descended into the arena and overstepped the limits of judicial propriety. I appealed against his decision on the grounds of that. One of the judges, Mayo J, upheld me but the majority were loyal to their colleague, whatever they might have thought privately.

I joined the firm of Brown Rymill & Stevens in 1948. It was in fact the lineal successor of the old firm of which my grandfather had been a member for a very short time, although he never really practiced the law. I stayed with that firm until I was appointed to the Bench. 

I had reached a stage of very seriously considering going to the separate Bar which was then in its infancy. It had been established - the first member was Chris Legoe who came back from Cambridge and went straight to the Bar. Then I think Zelling and Sangster went to the Bar. I was a very busy Counsel, most of my work came from other firms plus, of course, the court work which my own firm generated.

There was a meeting around 1958 that the Law Society held, about the potential division of the profession. Do you remember that?

Yes, now you mention it I do have some faint recollection about it, but I can't recall in any detail what the course of the debate was or what was the outcome. It happened also to be about the same time as the Stuart affair which occupied the interest of the Law Society much more than domestic politics.

I cut my teeth in the Courts of summary jurisdiction. My firm acted for the Royal Automobile Association which provided free legal aid to people charged with traffic offences, and we used to go to the Courts of summary jurisdiction. I then pleaded for them in litigation, or sometimes we'd contest the charges. I became sort of quite an expert in road traffic law and indeed helped to shape some of the amendments, particularly the rather draconian provisions of failing to give way to the right when you couldn't possibly see at blind corner.

It was very good experience because I learned some forensic skills without undue responsibility for the outcome. I remember my clients were not going to go to jail or get very severely dealt with so that it was a good learning experience. 

The firm changed its membership, of course, when Dr Brown retired - he was the senior member - and Rymill became Lord Mayor and left the firm. We recruited newer members Jim Boucaut and Derek Bollen. When Jim Boucaut unexpectedly died at the age of 46 from a severe heart attack, Edgar Stevens had just retired, and we had to find somebody else to do the ordinary day to day work of a senior solicitor. That's when we persuaded Jim Mellor who was really running the old firm of W & T Pope to join our firm as the senior solicitor. It became Stevens Mellor Jacobs and Bollen. We retained the name of Stevens with his permission because there was an element of goodwill attached to his long association with the firm. Although I always took the view really, that goodwill was very personal and did not necessarily endure for the benefit of the successors. 

I suppose in my early career, my mentor was George Ligertwood. I was articled in his firm. He'd known my father and he'd known me at Scotch College where his two sons were students. In a sense he was a family friend as well as a legal mentor. I suppose that of all the senior members in the legal profession, he was the one with whom I had the closest relationship. 

Later on I had close relationships with my own generation and my own peers. Bob Fisher and I, in particular, became very firm friends and regular advocates. We were in effect leaders of the local Bar, often opposed to each other but always retaining – and even now still retaining - a close friendship and respect for each other.

Where did you first meet Bob Fisher, do you remember? Was that before you were even a lawyer?

No, I don't know when I first met him. He was a member of the firm of Fisher Jeffries & Taylor, and I knew Trevor Taylor very well as a family friend through my parents. I don't remember where our paths first crossed. But we got on very well together, both as advocates on opposite sides of the fence. Indeed on one occasion, he appeared with me in the High Court as my junior in a case which we had won, and in which Harry Alderman had led me as silk. When the other side appealed to the High Court, Harry Alderman was really on his death bed, he was dying, and I knew more about the case than anybody else. Rather than try and instruct another silk, I got Bob Fisher to appear with me in the High Court and we managed to hold on to the judgement. 

It was a very interesting case, you talk about interesting cases but it involved a claim against Elders Trustee Company who had failed to exercise a very important option. There were two properties owned by different branches of the same family, they were called The Brook and Burnt Oak and they were always worked as one property. The owners of Burnt Oak had an option to acquire The Brook in a certain eventuality and the option was negligently allowed to lapse at great cost to the joint enterprise. We sued the person who'd failed to exercise the option - he was a member of the Trustee Company - and succeeded. The damages awarded exceeded the paid up capital of the company.

That was one of the celebrated cases. I had a good deal of experience at the Bar by that stage. I had quite a significant High Court practice. 

My first encounter with the High Court was in 1950, as junior to Mr Ross Casey as he then was, in a patent case brought against the South Australian Brush Company who had produced a product called the ‘Sweepiest Broom’. It involved a new method of inserting bristles into the head of their broom and it was alleged that we had infringed somebody else's patent. We managed to declare the patent invalid for lack of novelty. When that came on appeal to the High Court in 1950, Latham was Chief Justice, Starke was still on the bench, so was Evatt and so, of course, was Dixon and McTiernan. That, I think, was the first High Court I'd appeared before. Barwick KC led for the other side and he was at the height of his forensic skills. He was a most persuasive and impressive advocate, able to reduce the issues and express them in the simplest, uncomplicated terms. He was undoubtedly the leader of the Australian Bar. I think he led for the banks and the bank case for all the Privy Council. In due course I think the courts came to become a little bit suspicious of his facile arguments. But nevertheless he remained a very distinguished counsel and he became Chief Justice. He was never a great success as Chief Justice because he never really accepted the impartial judicial role with equanimity. He always wanted to be in the arena, to be in the fight. 

Did you win in that case? You won in that case in 1950 against Barwick?

That was the patent case. Yes, we won it. Much to my consternation at the time, because Bruce Ross was ill with influenza. After Barwick had appeared for the appellate and they adjourned overnight, Ross said for me to come to his home because he thought he may not be able to appear the following day because of his illness and that I might have to conduct the case. Fortunately Ross did front up and despite being unwell, we managed to hold it. And that was, I think, in 1950.

My first solo experience in the High Court was in 1957, in a case called Lamshed against Lake, which was a very interesting case. I can't remember the whole of the detail but I know that my man had been charged with some offence under the State road transport legislation, but he was in the course of journeys from the Northern Territory to South Australia. The question was as to the status of the South Australian legislation vis a vis Section 122 of the Constitution and the territorial power and the extent to which the territorial power might, in some way, invoke the principles of Section 92. The State law was held to be unconstitutional. That was a case which Chamberlain QC appeared for the State to defend the State legislation. The Road and Rail Transport Act, I think it was called. And, of course, the High Court was sitting in Melbourne and not all the judges on the High Court had ready access to the South Australian statutes. At the luncheon adjournment, Dixon who was really a very kindly judge and this was the only time I ever heard Dixon, who I appeared before quite frequently, say something which was a little unkind. Because he said to Chamberlain at the luncheon adjournment, he said, Mr Chamberlain, I wonder if you could arrange to have loose copies of the South Australian Act made available to us. We always like to read an Act before we declare it invalid. Chamberlain was really cross over that comment but it was really made out of a sense of fun.

That was certainly an interesting case and the other one was the suit against Elders Trustee. 
I suppose the cases which attracted most public attention and interest were the criminal cases and I had a number of very interesting murder trials. One we referred to as the axe lady, who bashed her husband to death with an axe because she discovered that he was committing incest with their daughters. When she was first tried, she was convicted because the judge held that the defence of provocation which would have reduced the crime to manslaughter was not available because she'd slept on this information before she decided to do away with him. Whereas the law of provocation as it then stood required an almost instantaneous reaction - you were literally provoked into doing what you did - and she in fact slept on it before she wielded the axe.

They appealed and I was on the Court of Criminal Appeal. We really had to consider whether the defence of provocation was as immediate as it seemed to be thought, or whether there might be a lingering concept of provocation. We held that that could be, that a person might be uncertain as to how to respond when first provoked and that it was not unreasonable for them to think about it. In all events we said the judge should have left provocation to the jury. So she was re-tried and although I'd been on the Court of Criminal Appeal, they didn't seem to think that stopped me from trying her again, and I don't think it did. I left the defence of provocation to the jury and indeed her Counsel, who was Jack Elliott, suggested to the jury really strongly that they should bring in a verdict of manslaughter. The jury acquitted her. When the jury announced their verdict of not guilty, I'm alleged to have said, not guilty of anything? To which they said, yes not guilty of anything.

I subsequently learned - and it was something I didn't know but Gray told me, and it presumably was in the formal instruction that was given to the jury panel before - that it was always open to the jury to bring in a compassionate verdict of mercy, which they did. I would not, of course, have sent her jail, but they exercised their power to bring in a merciful verdict of not guilty.
…
A very well known wine maker in the Barossa - I might think of his name or it might come to us when we come to edit it - she shot him. She had a shotgun - she went to his bedroom at night with a shotgun. Her excuse for carrying a loaded shotgun was that the parrots were keeping her awake at night - they were making a noise and she brought in a shotgun to frighten the parrots. Unfortunately it discharged when it was pointing at her husband asleep in bed three feet away from his head. She was acquitted. 

I have to say, it was one of the cases when I admired the integrity of the police investigation because they deposed to the fact that this weapon had a very light trigger action, and the possibility that she discharged it without realising that it would require so little pressure and that she didn't really intend to kill him at all; although it's hard to explain why the gun was pointing at him. The jury, of course, could not say beyond reasonable doubt that this wasn't an accident, an unintentional shooting. So she was also acquitted. Those were two quite widely publicised criminal cases that I had.

With the Criminal Court it was much more the source of what was regarded as interesting cases than in the Civil Courts.

Did you do criminal cases when you were at the Bar yourself?

No, I had very, very little criminal experience at all. I think I once appeared for a man who was charged with causing death by dangerous driving. That was partly, I suppose, because of the experience I'd gained in traffic law as a young practitioner. That man was convicted. And that, I think, was the only criminal case that I ever contested. 

Although there was another one I recall before the Chief Justice in which a man was charged with having made a false statutory declaration. I think he was applying for some public assistance and he made a false statutory declaration. Because the form of the statutory declaration, as you may recall, says I make this solemn declaration consciously believing the same to be true in the presence of etcetera. 

He went before a JP to make this statutory declaration and the JP said, the reading and writing is okay. The man said, yes. So he signed it. I argued that was not a statutory declaration because he never complied with the Act. So he couldn't be charged with making a false statutory declaration because he never made a statutory declaration at all. 

I can remember Napier saying, is that the only point in this case? And I said, yes it is, your Honour. He said, I think you'd be wise to take further instructions. So I said to my client, the writings on the wall and the Chief's not impressed with this defence, so we changed our plea to guilty and he was discharged without a conviction.

What do you remember about Harry Alderman?

I had a great regard for Harry Alderman. He was a no-nonsense lawyer. He was not a great lawyer in terms of his knowledge of the law. He'd only ever received a Finals Certificate, he'd never done a law degree, but he was a very good and sensible Counsel. In the case I mentioned earlier in which he led me in a breach of trust case which went on appeal just before he died - I remember in that case we were deprived of our costs because instead of framing the case within equity for breach of trust and Harry Alderman simply drew a pleading in negligence and Dixon didn't like that at all and deprived us of our costs.

I never appeared before the Privy Council. I was due to appear for a case that went to the Privy Council and I think it involved a Mr Becker. Bob Fisher was on the other side. I was appointed to the Bench and so I never got to the Privy Council. Thed, of course, I became the junior member of the Bray Court which really had an Australia wide reputation as a distinguished court. Indeed it was very difficult to find a court with three such eminent legal scholars as Bray, Zelling and Wells.

How well did you know Dr Bray when you were appointed?

I only knew him slightly. I'd briefed him once or twice and I had appeared against him in a very interesting case, as a matter of fact, which I will tell you about in a moment. He was an aloof man, you never really got to know him. We knew he had a rather curious lifestyle. He used to every Saturday have a circle of friends, which included Peter Ward, at the Sturt Arcade Hotel. 

I respected him as a judge although I think that he was a bit of a legal purist. If the law led to a result which he perceived to be unjust, his attitude was so much the worse for the law. He would not seek to somehow find a way around it. Those three, he and Zelling and Wells, were three outstanding legal intellects. I wouldn't put the other members of the Bray Court in quite the same category. There was Mitchell and Bright, and they were good working judges, but they didn't have the intellectual power. Bray and Wells never got on, because Wells had, I think, a rather more thorough knowledge of the law than Bray had. Wells had done his BCL at Oxford and was a Eldon Scholar, the only non-English Eldon Scholar that was ever appointed, as having topped the BCL course at Oxford.
It was a very good experience to be the junior member of that Court.

What was the experience when you were appointed a Judge and you arrive at work the first day?

I have to say that Charlie Bright became my mentor. He guided me through the early stages of my judicial career - what to do and what not to do and so on. If I ever had doubt as to what was a proper course for me to take, and without prejudicing any appeals that might be in prospect, Charlie Bright remained a source of advice to me, which I very much appreciated. 

Of course by the time I became a Judge, the independent Bar was in its infancy and I suppose that was the greatest change in the profession that occurred during my professional life, the emergence of the independent Bar which ultimately, of course, was established in much the same way as the Bar in the other states of Australia.

Now the Bar Association maintain an association with the Law Society, but they were very much a separate entity and they only joined forces with the Law Society on some issue of importance to the profession as a whole that might be the subject of public debate. I would have gone to the Bar I think because almost all of my practice in the firm was as Counsel, but my judicial appointment was the end of that.

There were other changes however that did occur, particularly in the realm of legal education. When I was a student we all did articles of clerkship. I think if you had a degree you had two years of articles, and if you had a Finals Certificate or more you did three years of articles. Then as the profession grew in numbers and strength the whole practice of the law became - the legislature became more interventionist - it became difficult for people to acquire articles of clerkship and we had to devise alternative means of professional legal education. I think it started off as what was then the School of Minds, which became the University of South Australia, and who had appealed to get a practical legal training course. But it had to involve members of the profession and after a good deal of minor changes and development, the Law Society itself took over and established its own PLT - practical legal training course - as a complete substitute for articles. That was a very significant change and a change for the better because articles of clerkship were by and large an unsatisfactory form of apprenticeship. It was very variable the amount of practical experience you got. It depended really much on the nature of the firm to which you were articled. Whereas the present practical legal training course has a much wider general scope. 

That change in legal education, which was an important change, I was President of the Law Society at the time. At the time I was appointed a judge I'd been on the Law Society Council since about 1958, when I think I was first elected. Now it seems to be almost a full time job with the President sort of taking a year off. But it was really much a part time job when I was President and I don't remember any greater issues. 

I suppose the most interesting issue was the question of reciprocity with other States and the rights of a practitioner of one State to practice in another State. It was very difficult to get any sort of unanimity about that, there was conference after conference. I think now there is an Australian legal register, I think, I'm not sure about that. But there's much more interstate practice now and, of course, there ought to be because you often had clients who had business interests in another State and so on. 

The other issue, of course, which became domestically controversial within the profession, was the question of interest on trust accounts, which was applied very substantially to establish a fidelity fund. Some members of the profession took the view that it was very wrong for us to take the interest on our clients' money and use it for professional purposes. Jack Ashley was one who was very strong about that. But on the other hand I think it was important from the clients' point of view to have a fund to which they could have recourse in the event of malpractice by a member of the profession. So really it cut both ways.

I enjoyed my judicial career. I have to say with due modesty that I think I was regarded as a good judge and, in particular, by Counsel interstate who appeared before me from time to time. I was thought to be a bit soft in the Criminal Courts but I suppose I thought the law was a place for mercy and compassion in the administration of criminal law. Although I've had little criminal experience, I was never once upset by the Court of Criminal Appeal in the whole of my 17 years on the Bench. I took a lot of trouble in the Criminal Court, particularly with my directions on the law. Unless time and circumstance made it important to sum up immediately, I generally took time to prepare my summing up to the jury to make certain that, as far as I could, I got it right.

I think I was in full possession of my faculties at the age of 70 and not all judges are. Some of us, as it were, last longer than others. I hope I'm still in possession of my faculties now that I'm 88. 

I didn't get much respite because a month after I retired I was appointed to the Royal Commission into the State Bank. That was a very interesting experience and, believe it or not, a very enjoyable experience in a way because I was running my own show. I had very good counsel assisting me, John Mansfield was the senior counsel assisting me. We had a very good secretary, a young woman who we recruited on the recommendation of senior public servants, who was an up and coming public service administrator. We had to start completely from scratch - and she did it all - we had to find premises, we appointed solicitors and we appointed a firm of accountants to advise us on the accounts of the bank. We had to then go about the task of collecting all the evidence, starting from scratch. We set up premises in what was called the Black Stump, the AMP Building in Grenfell Street.

Yes, it's 25 Grenfell.

Yes, we had two floors in there. I had good Counsel. Not only was John Mansfield assisting me but Michael Abbott was appearing for the Directors of the bank, and the State government was represented. Of course it was the State bank and the Treasurer ultimately had to take responsibility and, indeed, John Bannon did. He knew as soon as the bank collapsed that his political career was at an end because he was the Treasurer and the buck stopped with him. 
It lasted for two and a half years. I wrote the reports with some assistance. We did have computers at that stage but I was not computer literate and I much preferred to listen to evidence and to look at witnesses than stare at a computer screen. I took my own fairly copious notes. We didn't sit on Mondays, and on every Monday I went through the previous week's procedure, more or less putting together the skeletal provisions of the ultimate report.

Although I had some assistance in drafting from counsel assisting - Simon Lang was junior counsel to Mansfield - I wrote or settled every word in the report. Indeed there were two reports which I wrote. They were separate terms of reference, the first term of reference was the relationship of the Bank to the government of the day and the second term of reference was into the Bank's activities and to the propriety of them, the role of Mr Marcus Clarke in particular, and conflicts of interest and things of that sort. 
In fact I became, not because of the stress of the report, but as a natural element of health, I became ill and had a coronary bypass in the middle of that, but I was only off duty for about five or six weeks.

I did not complete the third term of reference which I think was to recommend changes in the law; they appointed John Mansfield who had been my Counsel to do the third report. But I've got the two reports up there and it was a very interesting and worthwhile job. 

I think the government were a bit disappointed, I think they thought that a Royal Commissioner was going to come down on the Government's side but they chose the wrong man. I wrote it as I saw it. I think Chris Sumner was the Attorney General and I think he was a bit disappointed that I didn't let the Government off a little more easily. But it wasn't only Bannon and it wasn't only Marcus Clarke, the Chief Executive. There were other factors. Bannon had complete trust in Marcus Clarke and that was one of the problems. He accepted Marcus Clarke's advice – and he was a charismatic man, he was very persuasive - in preference to any other advice. If he'd had a stronger under-Treasurer… because the then under-Treasurer was really much a back room man without much political savvy. If the Treasurer, who knew what position was developing and how the Bank was going bust, if he'd thumped the table and been more emphatic, Bannon might have listened to him but he gave up advising Bannon because Bannon took no notice of him.

I was very critical also of the Reserve Bank, because although the State Bank was not subject to the oversight of the Reserve Bank as the trading banks were, the Reserve Bank nonetheless took an interest in the performance of the State Bank. After all it was seeking to operate in competition with the trading banks. The Reserve Bank knew how unwise some of its activities and procedures were, but it never alerted the Treasurer because it said it had nothing to do with the State. I think that was very wrong of the Reserve Bank. If the Reserve Bank had gone to Bannon and said, look here, this Bank is in trouble, Bannon might have taken a bit of notice, but they didn't do it. So there were lots of people who contributed to that disaster. Although it's easy to say that Marcus Clarke was the chief architect, the Board couldn't really control. They wanted in the end to get rid of him and Bannon wouldn't let them. Bannon went to a Board meeting, when they were going to terminate Marcus Clarke's appointment, and Bannon wouldn't let them do it. 

It really was a very sorry story but very interesting. I enjoyed writing the report which I might say I hope, in due modesty, received some acclaim for its literary excellence. I'm told it was a recommended script for reading at the Flinders University because of the use of language and use of metaphor and so on. You get some little satisfaction from things of that sort.

As I say, we had to set it up with nothing from the word go. It really worked out well. Your last question here - were you satisfied with the result? And the answer is, yes I was, very satisfied with the result. I'm not sure that everybody was but again I found it as I saw it, without fear or favour. 

Apart from my judicial career and the State Bank, I was involved with quite a number of community and voluntary activities. I was a member of the University Council for 30 years, from 1961 until 1991, thereabouts. I think I retired because the State Bank was the University's bankers and I had a bit of a potential conflict of interest.

I've been very active as an undergraduate and as a graduate at the University and I was interested in what was then the role of the senate, which not only had an electoral function for the University Council but also had a review function for university legislation. I was persuaded by George Ligertwood, who I said earlier was my mentor in many respects, to stand for election to the Council. He said, you won't get in at your first attempt but at least you ought to put yourself forward. So I did and I got in and I, in fact, unseated Mr Hannan QC who was then the Warden of the Senate, who was very cross. He thought that I'd lobbied to defeat him and, in fact, I had not solicited a single vote. Then I became Chairman of the Finance Committee of the University Council. The University Council was interesting and took a bit of time but I managed to arrange my judicial and other work to free myself on Friday afternoons for Council and Finance Committee meetings. Lots of people freed themselves on Friday afternoon for a long lunch but that wasn't me.

I was also on a Commonwealth committee, called the Committee on Overseas Professional Qualifications which was set up to directly report to the Minister of Immigration. Our task was to assess the qualifications of the potential migrants, well immigrants, against the Australian standard and to see what further, if any, experience they needed. There were quite a number from the Philippines, people like nurses and teachers and doctors. Many of the callings of the professions had qualifications which we needed to assess and determine what further study they needed to undertake in order for them to obtain registration and acceptance in Australia. I remained on that Committee with the government’s approval, even after I became a Judge. It was summarily sacked, is the only appropriate word, when Hawke became Prime Minister and there was a new Minister of Immigration who bowed to the plea of the Department of Immigration. We were usurping its role, so he sacked us, ceremoniously without any notice. 

That was very interesting and it was a pretty high powered Committee. Arvi Parbo was a member, and the Vice Chancellor of La Trobe University was on it, and the Chief Executive Officer of ICI and a very senior member of the teaching profession in Victoria. And a medical man, the Dean of the Medical School of the University of Brisbane who was a very skilled medical politician. That was very important because in terms of recognition of overseas practitioners the medical profession was very anxious as far as possible to maintain a closed shop, but Eric Saint was a wiser man. That was an interesting activity.

I was a member of the Winston Churchill Memorial Trust which selected young men and women to get experience overseas, perhaps had exhausted their avenues of research and learning in Australia, hoping to get experience in their respective disciplines overseas. I remained Chairman of that for some years. 
I also became the Chairman of the Forensic Science Advisory Committee; that was an advisory committee to the State government. Fortunately DNA was only just starting to assume the importance that it now has but even then we were feeling the pressure of the shortage of qualified pathologists. As a matter of fact, they have appointed a professor of forensic science now at Flinders University who in fact was the first director of the forensic science centre. 

I think one last thing I think we should discuss is Scotch College. I think you had a lot to do with Scotch.

Yes, I did. Did I say earlier that I was at Scotch for ten years or so?

No, I don't think we've spoken much about Scotch.

My primary and secondary education was at Scotch College where I was enrolled at the age of eight and where I remained until I was almost at the age of 18, finishing up as Captain of the school and Captain of the first eleven, and Editor of the school magazine. I had, in fact, matriculated two years earlier and I had two years post-matriculation at school which was a very interesting period, where much of my tuition by arrangement was in the form of supervisor or guided by private study which was a very good introduction to working at the university.

I retained an interest in the school for the next 50-odd years. I became Deputy Chairman of the Council until I retired from that position in 1988. In 1960 to 1965 I conducted an appeal to mark the Golden Jubilee of the establishment of the College which involved travelling and contact with the whole of the school community, old scholars, parents and the like. We raised a very substantial sum of money. I think in terms of present currency values in the order of $3 million, from a very small school community – because the school at that stage was less than half the size that it is today - and that was spent on building a chapel and a senior school and other developmental projects.

I was also instrumental in the decision for the school to become co-educational. When I say instrumental, it was not my initiative, it was the initiative of the Headmaster who succeeded Charles Fisher, a man called Phillip Roth. He phoned me one evening and said he'd like to talk to me and I said, yes when? He said, now. Can you come up? So I abandoned whatever I was doing - I generally worked at home at night - and went up and talked to him. He was putting to me the proposal that the school should become co-educational, not for any financial benefit or enrolment increase, but purely upon educational grounds. It was important for young people to grow up in a mixed sexual environment. This was in about 1973. His purpose, of course, was that if he could persuade me then he was going to use me to try and persuade the school community, because I had already established a strong relationship with the school community through my Chairmanship of the Jubilee Appeal. 

In due course there was a meeting convened of Old Scholars and parents and so on which I had to address and invite their support for the proposed change to a co-educational school, and which they agreed to and adopted. Not without some misgivings, particularly on the part of the Old Scholars, but it was, I think, a change for the better

And last but not least, did you want to talk briefly about your family? I believe you met your wife when you were as young as 17 years old.

I've had a very happy family personal life. My wife and I were married for 62 years at the time of her death. I met her when we were both at school. I'm not even sure that it was love at first sight, which I don't really believe in. I was introduced to her at a meeting of a combined school sports event on the Adelaide Oval. I do remember when our eyes met there seemed to be some sort of a message. That was in 1937.

Then in 1938 our relationship became somewhat closer because she was Head Prefect of what was then PGC, now Seymour, and I was Head Prefect of Scotch College. We had more to do with each other, social functions, school dances and interschool debates and so on. We became very fond of each other. There was one occasion I can remember, when we were playing against King's School, or King's College as it then was, out at Kensington. I was Captain of the school cricket team and we had been dismissed for about 130 and they were 6 for 124. I was bowling my funny slow leg breaks and I was about to take myself off because I didn't want the winning runs to be hit off me, being a very selfish Captain, and then Mary arrived to watch the cricket. So I thought, well I'll give myself one more over seeing she's come to watch me. I took four wickets in that over and we won the match. And I thought to myself, well if this person can have that sort of influence on my behaviour then she must be meant for me.

Our relationship developed thereafter. I think she was a little worried when we both went to university that I might be playing the field with new female acquaintances but she need not have worried about that. Of course, after one year at the university I went off to the war. We did discuss getting married but I was only 19 in fact at the time, and I had no money and I thought it was unwise to get married and perhaps leave her as a young widow.

I said, we'll wait and things will turn out, as indeed they did. We eventually married in 1946 and lived happily ever after with four children. Now, of course, there's grandchildren and three great grandchildren. It was a long and happy marriage. Indeed on our 40th wedding anniversary, our daughter said to us, well you two must have got it right or you're too jolly lazy to do anything about it. And I said, well we got it right - and we did. I was very fortunate to have a long and happy marriage.

…


For a short time I was appointed as Chairman of the Royal Adelaide Hospital Board but following a report which would have been prepared by Mr Justice Bright for the government, in which he advocated that the Hospital should be an independent institution and not under the control of the Minister of Health, the government, and wisely as it turned out, accepted that advice and I was made Chairman. I was a judge at the time and I made it very clear - and I indeed put it in writing to the Minister - that while I was willing to fight the battles of the Hospital or the Health Department if necessary, I was not prepared to become engaged in anything in the nature of public controversy which involved the Minister, which would have been incompatible with my judicial independence. 

The Minister, who was Peter Duncan at the time, I think, accepted that. But it soon became apparent that the whole concept was really flawed because the government had to fund the Hospital. And funding the Hospital, they wanted some say. He who pays the piper calls the tune. I found really that my position and that involvement with the Minister was incompatible in my judicial independence and I had to - that I'd foreshadowed when I was appointed - I had to resign, which the Minister graciously accepted. It was an interesting concept but really unworkable.

This concludes the interview.