ORAL HISTORIES INTERVIEW
By Lindy McNamara on 4 March 2016
This is an interview with Josephine Mercer by Lindy McNamara. The date is the 4th of March, 2016. Can we start with your full name and date of birth?
Josephine Melvyn Mercer. 29th of July, 1934.
Where were you born?
In Sydney, in Randwick.
And the names of your parents?
Joseph and Melvyn.
Where did you live in the early years? I gather it was in New South Wales?
Yes. Always in the Coogee Randwick area.
Can you recall what it was like growing up there?
Mainly the beach - the beach, summer and winter. We lived very close to the beach, and that's why I have sun spots and sun cancers now. We spent our lives at the beach – afternoons, after school, all weekend - winter and summer. And walking around the rocks in that area. It's a lovely area. I go back regularly.
Is the beach a big part of your life here in Adelaide?
No, which is sad. When we first came here I thought it might be an idea to live by the beach, but my husband, who is an Architect, said no, it's too hard maintaining a house near the sea. So we chose North Adelaide, in the city.
Education - where were you for primary school or high school?
Primary school was Brigid's, Coogee, with the Brigidine nuns, and secondary school was the Brigidine Convent in Randwick. The little primary school fed the school in Randwick.
Did you enjoy school?
Yes, it was lovely. Of course - except for the first three years when there were little boys - it was a girl's school and I have stayed friends with many of my fellow students ever since.
Did you study Italian at school?
No, French and Latin. They were the pre-requisites for Italian at university at that time, and that's how I came to do Italian at university.
So you left school and went straight into university?
And you were studying -
An Arts degree.
Arts degree. Majoring in -
Italian and Education, yes.
Okay. And the interest in Italian - how did that come about?
Well, from other students who had been at school ahead of me and gone into Italian, and said what an interesting course it was in Sydney University. And it was a very small department and in fact, should one join that department and start studying Italian in those days, you really became an Italian student. That was the centre of your studies because it was an intimate department, and we were only six in the final year. So it was - it took over your university life if you liked it.
And after university, what was your first job?
The first - I was a personnel officer in a cotton mill near the university, and it was there that I started to get involved with migrants coming into the workforce, and in social justice issues and industrial issues. I was there for a couple of years, and then I went to the ABC as the female personnel officer there. I spent a couple of years there, and then I was offered a scholarship by the Italian Department at the university, or they recommended to the Italian government the scholarship be given to me and another person, and I went off to Italy - to Rome - for a couple of years. It was at that stage that I became more and more interested in migration, and migration from Italy to Australia. And that's where I could see a connection between personnel issues and the language. I had a couple of years in Rome. While there, the Australian foreign affairs staff and the Australians in Geneva involved with migration - I was in contact with them and they were giving me special training. And they said, when you go back to Australia, join the Immigration Department.
So back I came to Australia. I was offered work with the Immigration Department, and they wanted to send the first woman to Southern Europe - they hadn't had women in Southern Europe interviewing migrants and doing selection and visa issue, but there was quite a bit of opposition to a woman being sent, so I was asked would I escort migrants from Europe on the ships while they were sorting this issue out. Three years later I'd been around the world three times a year or four times a year for -
So you'd just get on the ship with them?
I would get on the ship in Australia and have a great time going north with all the Australians going north to holiday. On the way back I would organise language training for the migrants, information about Australia, help them with the entry into Australia, sometimes escort groups to the Riverland, for example. So I was involved in the introduction of the migrants to Australia.
Then although I had Italian language, when I was posted to an overseas post I was sent to Greece - Athens - and I was there for four years. That was great. It was a wonderful experience, actually.
You could still utilise your Italian? Or you had to learn Greek as well?
I didn't have to, but yes, you did in those four years. When I came to Australia, I was then invited to work in Immigration with the Committee on Overseas Professional Qualifications, the recognition of professional qualifications in Australia. The late Sam Jacobs was on the Committee at that time and so was the Chancellor of La Trobe - it was a very interesting group.
I was given certain professions to look at, and they were medicine, law, dentistry. There was a register of all professions. I found I needed to understand statutory interpretation to be able to work out who should be registered, and what the conditions were in order to try and get them changed to make it more feasible for overseas migrants to be recognised, so that's when I started to study law at ANU. That's where the interest in law came in.
How old were you then?
I was in my late 30s. Yes, it must have been late 30s. Then I met David, who was Deputy Chair of the Queensland Public Service Board, and also Chairman of the Architect's Board, so that's where we met. We eventually married and I resigned from Immigration and we went to Queensland. I was doing some work with the ABC, because I'd always kept on with the ABC doing talks and things for them - while I was in Italy anyway, not in Greece. And I continued with law in Queensland, and that's where I graduated.
What year was it that you graduated?
1970 - I graduated the year we came down here.
We came here because Don Dunston invited my husband to be Chairman of the Public Service Board here, so we came here. I had just graduated, and I needed to do Articles, and I was offered a position - I was invited to do Articles with Riley Aherne and Kerin and that's where my law career started.
And so I guess you never turned your back on your languages, because that's always been a part of your work?
Yes, that's right. In fact, when I first came here and just before I started - it must have been before the Articles - I was doing some interpreting in the Family Court.
When you first started working for Riley Aherne, were you doing any work for migrants then?
Yes, they had a lot of migrants as clients because they did a lot of industrial work. I had to be very careful not to be acting as interpreter. Understanding their background was one thing. You've got to be careful changing roles - interpreting, and advising, etcetera. But it was good background.
Did you enjoy the change? It was quite a significant change in your career path.
I loved the law. I loved studying it. I loved being a part of it. My nieces and nephews are now in law, and they just love the logic in there. Love the social justice aspect of it as well.
Do you feel like in those early days - perhaps before you graduated, but you were still working with migrants - that you made a big difference to some of their lives in coming to Australia? Did you make that transition for them?
I thought it was very important. In fact, when I joined Immigration we still had the White Australia Policy.
I interviewed in Israel, and that was an area you had people coming from all over the world, and it was difficult. You know, you were facing these issues - I think the Immigration Department and those working with the Department at the time were a little bit ahead in tolerance of the community generally, and you really believed you were doing something for people who were coming at that time. Most of the people I worked with there and that I had connections with when I came home were really dedicated to the whole concept of migration, and the fact that it did help people. I felt it was worthwhile.
I guess now with the refugee issue - you obviously watch that quite closely?
Yes. I'm concerned about what's happening. I'm concerned also at the change in the nature of the Department, and the way it's working.
Just going back to when you were talking about being the first - did you end up being the first woman to be posted -
In Southern Europe - yes. There was a woman in England and there was one, I think eventually, to Germany. It was thought that women couldn't cope with Southern European men I think.
You obviously showed that you could.
I'd been working with them and associating with them for years. In all work at the time, there was the feeling that women were coming into professional areas. I might have been one of the first women on that level in the Department so that too was a bit of a challenge at the time. But on the whole, I didn't have a lot of trouble. The Head of the Department would say, we've got to take it quietly or easily, but then just before I got married I was supposed to go to America. By that time the movement of women in the Department was much greater.
When you were dealing with migrants wanting to come to Australia, did they have a realistic view of what they were coming to, or was it just seen as this great country that was going to change their lives?
When I was on the ships bringing people out, I was bringing them from Northern Europe - non-English, they were - the ones I was bringing were the European migrants. The Northern Europeans, of course, had a different attitude to the Southern Europeans. The Northern Europeans often were not sponsored. Whereas, most of the Southern ones were either sponsored, or coming on schemes.
The economic situation was much more difficult for them. The Southerners tended to be going to families; the Northerners were all coming because it would be a better life, of course. It was a very positive movement. I would go to Bonegilla sometimes, where they would arrive - those who didn't have family would go there for a little while. In Greece, in interviewing people, there was great anxiety about whether they would get their visa because they had to pass a medical test, a police check, and the visa requirements were quite tough. If you had any handicaps that were going to be a burden on society, then quite often the visa had to be refused. On the whole, there was a good spirit, a humanitarian spirit, and most of the people I worked with were very positive.
It was an interesting time, and seems so different from the attitude now, which is much more -
Don't bring the immigrants -
That's right. Still, they are different times.
Well, let's turn to - you're now graduated from law, and you're in Adelaide. You did your Articles with Riley Aherne and Kerin. How did that all go?
Good. It was an interesting time. I got into rough waters later on, but I'm still in touch with most of the people there, quite a few of them anyway. And it was very interesting - it was plaintiff work generally, because some firms tend to act for plaintiffs, and some defendants. They had a general practice, and I did a little bit of everything. I finished up doing a lot of Chamber work, because I didn't want to work full-time. David's career was fairly demanding of course, and when we wanted to go away I wanted to be available when he retired. That's where the costing was so good. That's where going into that was – it fitted in.
What was it like being, shall I say, a more mature graduate coming into the legal profession here? Were you readily accepted?
Yes, there was no problem at all. It was a very good - in fact, I was very impressed and always had been at the atmosphere in the profession. It was smaller, of course then.
I then became a member of, and was involved with Labour Lawyers and that was a very receptive group, and just the atmosphere going to Chambers, or the big call-overs that they had at the time. I belonged in a short time. It was very welcoming.
How long did you stay at Riley's for?
I'd say, until '84/'85. I think by '84 I had an arrangement with them that I'd do their chamber work. After the first or second year I only ever did four days a week, and they were very good to accommodate that - because I didn't see myself as going a long way in the profession. I wanted to work and be available, particularly for David, to do things with him, and that fitted in beautifully. And once I got interested in costing, I did do a bit of locum work for people, But it was general, I didn't do commercial work, because Riley's didn't, but I did a bit of estate work, a bit of Family work.
And then you decided to go and set up your own -
Then I worked from home. I took out Barrister's insurance only, so took instructions from solicitors, to draw up their bills and then argue on taxations.
Why did that part of the law interest you so much?
I was probably asked by Rileys to do it. I remember one very complex Estate matter that went on and on through to the High Court. I went as junior - I didn't argue, but thank goodness the senior didn't collapse. I did the costing on it through the three levels. And the firm sent me off to Bob Lunn who at the time was in Chambers - this is before he had gone onto the Bench - to have some special lessons with him on good costing, and I just gradually got interested in costing, and found it was the sort of work I could do from home. The more I got into it, the more interested I got. And the more I realised how important it is for the profession. First, for the solicitors themselves, because it's the basis of their business in one sense, but from the client point of view my real concern were party-party costs, because the ‘loser pays’ principle only works if those party-party costs are properly detailed and assessed.
That's how things got really much harder with proliferation of time costing. And that's what I've been sad about, and sort of trying to counter for all these years.
I still think the majority of the profession - once they get involved in a matter, they do it with their whole hearts, get into it and are not counting the dollars as they go. But there is pressure now, and it's becoming stronger on the younger members of the profession, that at the end of the day you have a billing slip record that fits into the expectations of the firm. And that's sad, but still it's reality.
Are there some cases that stick in your mind that you were asked to work on that were very complex but you thought there were sort of injustices there? Are there unusual cases that stick in your mind?
There are some funny little ones I remember. I wouldn't like to be critical of certain people who are still in the profession; I'm quite positive on the whole, but I do have some reservations about some practices - having, particularly, been on the Legal Practitioners Conduct Board. There are people around who cannot keep their books, or make their claims in the way that one would like to see.
They're a bit more creative.
Exactly. But what I do remember is the early Masters, like Jack Boehm and Master Teasdale-Smith. Of course there weren't as many big cases as there are now - big commercial cases - but back in the '80s, for example, you'd do a taxation around the table. One of the Chamber hearings I went to involved a small estate where there were about five lawyers acting, representing the various parties, and of course if you did your sums you'd realise the estate's gone - after a few short hearings – in the combined legal fees.
All the money.
Yes, that's right. And that's the sort of thing that sticks in your mind - the masters were conscious of that. The judges are today too. You've got to keep in mind what the matter is. You've got to keep the client in mind first of all, and the effect on the client of these costs, and this case I just remember at the end of the Chamber hearing everybody getting up and saying <clapping>, that's the end.
And there's nothing left to give away.
That's right. I remember the first file in a suitcase that arrived at my house, that was regarded as a big file, you know. Now it's bucket loads.
Do you look at some of the cases that are reported in the press, and think there are so many lawyers working on this that - as you said, people with smaller estates - but you know, the big commercial cases?
What concerns me about big matters is only the fact that little people can't get involved. Deep pockets can crash justice.
If you don't have the money to fight, even if you've got right on your side, then it's very difficult without legal aid, and that's why I'm so keen that party-party costs are made as realistic as possible. So that a solicitor acting on scale for somebody who has no money, gets properly rewarded, and the person themself - whether defendant or plaintiff - is not at the end of the day having to pay all of what they've recovered to the solicitor.
Do you see those instances happening all the time?
Yes. That's what I feel is worth fighting for, both for the solicitor and for the client. It breaks my heart to see “deep pockets”. I'm not condemning all defendants or all big companies but there is the temptation if you've got the money, to cut the person out through costs.
And perhaps your work prior to becoming a lawyer, with social justice and working with migrants - it perhaps assisted you to see it from the client's point of view, as well, not just always from the solicitors?
Yes. It may have, yes. I suppose, generally, yes. Most of the people that I associate with feel the same way. Well, you get to know your clients well.
Tell me about the Law Society. You've been involved with the Cost Committee?
The Cost Committee, all those years, yes.
Why did you first of all decide to join the Cost Committee?
I think that the firm I was with - I'm sure I joined with Riley's, and they were, as a firm, supportive of the Law Society and being members. They paid for the membership of the solicitors and encouraged the solicitors in the firm to be on Committees or to be involved. And once having got onto the Committee - and I Chaired it for a while - I realised this is the only way you can really affect this area and make changes within the profession.
What are some of the significant changes over the years you were involved with?
For me, it's very important at the moment. It's the issues that were going through at the time, but the ones going through now matter to me very much.
The big one at the moment is getting rid of the short-form bill. The short-form bill is the first claim that the solicitor makes on behalf of the client, who in most cases has won a matter - getting their costs back from the other side.
It has become so complex it is frightening. I won't go into all the reasons why we want it changed, but it is very important, I think. I have the support of the others generally, that we get rid of the short-form bill and replace it with a much more straight-forward system. Going back to a more abbreviated form of the old system, and we think it will lead to much more settlement, and less unnecessary argument.
We're hoping that it will encourage solicitors to keep their records in a more reasonable way so that they can make these claims in a way that will avoid - what is happening is that the whole exercise of getting your costs back from the other side is ridiculously complicated and expensive, and at the end the clients are losing out because matters are settling to the disadvantage of clients, quite often, because they can't risk the cost of going on.
So the simpler we can make the system - and the Courts are receptive to that. Of course they don’t want Masters wasting time sitting around, arguing about things that should be straight-forward. It's not rocket science. It's like a medical bill, or a dental bill.
I guess when people embark on a legal matter and they employ a solicitor to act for them, they don't really think about the complexity of the billing side of things. They just want their matter resolved.
And the new laws, our own Legal Practitioners' Act is making it much more onerous, and I think rightly the solicitor must explain all of the risks involved in taking on the litigation. Now, sometimes that means the person will not fight for their rights, because they know they're going to risk too much. And that's the reality of it - legal costs are high.
Do you think the legal profession loses some credibility in the community for having such high costs over the years?
It has, over the years. But I don't think the scale is too high. I think that in fact so many charge above the scale and that's what worries me - the gap between the scale and what some solicitors are charging. The scale, I think, is now in line with what are reasonable costs. I think that the problem is there are solicitors who are not as efficient, and that's what's encouraged by the time costing system.
It's sort of working against it?
That's right exactly. But I have found in practise that the best solicitors - if they charge on scale - earn more than they would if they were charging on a time costing basis, because they're so efficient that they do their work in much less time. Whereas the solicitors mucking around and thinking about it for days and charging by the minute, charge more for less effect for the client. I believe in the scale, and I think if solicitors stuck to it, the community would respect them more.
Do you think one of your goals in life would be to make sure the community has a new view on the legal profession and its scale of fees?
A new view on the majority in the profession. I think they've got to be realistic and realise there are some who will always -
There are a lot of professions like that. It's not just the legal profession.
Now I noticed in the Cost Committee that you had a sub-committee with [Mr Erickson, Genders and Norman?]
Well, when I worked there - I remember Peter and Rod Genders and - what was that one about?
That was working on contingency fees.
At that time there was a lot of discussion - that's right, yes.
And you worked recently on the Legal Practitioners' Amendments Bill, is that right?
How much time do you spend doing Law Society work?
Well, it depends on an issue like that. For example, this big one we're doing now, it would be days of discussions and drafting, submissions, etcetera. But there is a regular monthly meeting and the agenda and minutes later checking that, so it's not regularly a lot of work, it's only when some issue comes up.
Are you the go-to expert? Are you the person that they say, let's go and ask Jo what she would do?
I'm one of them, yes. There's a group now and I'm just one of them.
Is the law so much part of your life now that regardless of how old you are, in years to come you'll still be taking an interest in this?
I think so. I have a niece and nephew who are solicitors too, and whenever we get together there's discussions, as most lawyers do. You never lose an interest in what's happening.
What are your views on the profession nowadays?
I have great respect for the profession, and I think that most of the people in it are really providing a service to the community. That's my general opinion, but I think there are some, quite a few people who just regard it as a business and that upsets me, if it's just a business. Because I think, like medicine, the law is a community service, it's a service profession. You should be entitled to make your living out of it, but I think it's basically a vocation - like teaching, medicine, the law -
It's interesting you raise the word, vocation, because a lot of people don't consider their job to be a vocation anymore, they just go to work and it's earning some money. Maybe all those years of doing the social justice work with the migrants was leading you to doing this work.
Well, one's own philosophy of life begets that, I think.
Obviously you're still involved with the Law Society - do you do private work as well still?
No. I do a lot of talking on the phone to other lawyers.
So you provide advice?
Well, I work with a couple of people who are working in that area, yes. We discuss all the issues. And yes, I do.
Do you foresee any other major issues that might be on the horizon that need to be addressed by the profession in future years?
I'm concerned about the education, the postgraduate education, the GDLPs and CPD areas. I like to see what's happening - that is, the encouragement of a good standard of education at that level - the continuing education aspect of it. That I think is important. And the conference work. I am concerned when too much emphasis is put upon the financial, the business side - that concerns me a bit, even though it's costs that I'm interested in.
Do you think lawyers are educated enough about costings in their early days?
No. I think it used to be a compulsory aspect, and I think doing Articles people had to do a little bit more of that. Because costing has always been regarded as something that the big boys are too busy to do - they pass it on. And in a sense, a lot of can be done by a good law clerk. But the decisions have to be made by the solicitor - what's just and fair; what should be included, what shouldn't; the basis of the costing - all of that has got to be done by lawyers. I don't think that there's quite enough of it done now. That's where the Law Society has to step in at the GDLP and CPD level.
Aside from law, how do you keep yourself busy? You said you've got a niece and nephew - do you get back to Sydney quite a bit?
Yes, I’m going next week.
So you still have family there?
Yes, that's right. Yes, my sister - at Coogee.
So back to the beach?
Yes, that's right.
And did you have children yourself?
So you can spoil them instead?
That's right. My husband had been married before and has two children, and we have grandchildren - he does - so we see them. They're in Queensland.
Yes. And languages - are you still -
Chinese at the moment - Mandarin.
You're learning Mandarin?
I've been dabbling in it for years.
How does that compare to learning Italian and Greek?
It's another world, because you can't translate from one language. I don't believe you can translate words from English to Mandarin or vice versa. You've got to get right into a different mindset. What I'm finding fascinating is the culture.
Immersing yourself in the culture to be able to speak the language - is that part of it?
Yes, that's exactly it. The characters - there's no end to it. I live next door to a University College and there's a Chinese student who I'm going to help with his English starting in the next few days. He's giving me some Mandarin in exchange too, but it's the discussions about the words, and things like how you address members of the family, and polite ways of asking your age and not asking your age, and the fact of if you tell somebody you're born in the year of the monkey they can work out your age, and all this sort of thing. And the lunar year, and the calendar year - there are all these concepts that are so different from the European language situation. I find it fascinating.
You've obviously got a knack for languages. Some people find it very difficult to learn a new language, but you've managed to cover - what was it at school?
French and Latin. But most did then. And Italian I think is the easiest of the European languages for Australian kids to learn because the pronunciation is so much simpler than French. I think confidence is 80% of learning a language. Just throwing yourself in. It's not a question of intelligence, I think if you just throw yourself in - and I just love the fact that you're entering another world, and that's what I find with Chinese. You become a different person. You know, that's what I found with Italian. When I went to Italy I became a little bit Italian, and in Greece you become a little bit Greek. Your personality changes a bit. It just opens up another world, and the literature - I just find it fascinating.
Have you travelled a lot since you - obviously when you were younger you travelled a lot, but -
David and I travelled on container ships. He worked very intensely and we'd try and take six weeks off and go mainly to Europe. But on container ships we'd go up to Japan. He loved Japan because it's one of his main - when he was doing Architecture - one of his main side studies was Kyoto.
Why were you going on container ships?
Because the container ships were great. I had spent years on the ships going to and from Europe and I had hated those big cruise ship, so I found that there were container ships leaving from Adelaide and New Zealand, going to Japan, Korea, China, etcetera. There were only half a dozen passengers - these were the big container ships - and we did a few of them, because they were fascinating. You really got to sea. You went into a town - a separate town in Japan. You were dropped off at the container port and you had your time there. The crew was a small group of officers, Australian mainly, and a bigger group of an engine crew and cooks - So the staff would be 30 or 40, but big ships - we loved that.
A very interesting way of travelling.
I still have very good friends in Italy, so we go and stay in different parts of Italy. In England I had cousins, etcetera, so we'd go there. We tended to go to Europe, mainly. Apart from those container ships.
And I've noticed that you love embroidery. Patchwork and quilting.
You're very talented in that area?
No, I just - it's like costing: you need patience, persistence, and you just get in and you do it.
Well, it's been really lovely talking to you. Thank you so much.