ORAL HISTORIES INTERVIEW
Honourable Margaret Nyland AM
By John Goldberg on 21 July 2014
I am interviewing Margaret Nyland for the Law Society Historical Records Project. Margaret, I might start if I may, with your early years. Tell me about your parents?
The interesting thing about my parents is that neither of them had a good education. My father spent most of his formative years in Goodwood Orphanage, and did not complete primary school. He went out to work when he was eleven years old.
My mother finished primary school, but she went out to work when she was 13. Her first job in life was that of an egg wiper at Farmers Union, which used to be at Mile End.
What was an egg wiper?
Well eggs don’t come out clean from a fowl so you have to wipe them. We’re talking about a long time ago before factory processing. So eggs used to be manually wiped, and there she was at the age of 13 wiping eggs.
But they both, where I was very fortunate, had this very clear belief that the way to success in life was through a good education. My father’s history was quite interesting because he became self-educated, and he eventually learnt a trade - he was a boilermaker by trade, and he was working in that capacity in my early years. But then he had a major accident at the Southwark Brewery, and lost one finger and had another finger severed and was on workers’ comp for I think, six months or more and we had very little money. He didn’t go back to the brewery after that; he bought a taxi and over time he became a taxi organiser, and ended up as secretary of the Transport Workers Union.
My mother also learnt a trade. She became a tent and sail maker, and she worked at what was then Colton Palmer and Preston. She also became very proficient at making flags. She actually made all the flags in Adelaide for the Queen’s Coronation. It’s a very precise art because you’ve got to have the right measurements and all those things. I grew up in Hurtle Square, so she used to walk down to work and she used to go past Adelaide Girls High School, which was then in Grote Street. She was always very keen on the thought that I might go to that school. But my parents were so committed to education they ensured that I had a good education.
I went to Gilles Street Primary School, and then I did go to Adelaide Girls High School, which had a very strong team of women teachers at that time. The school had not long separated from being a co-ed school. When I look back I think that I was very lucky to have been at that school at that particular time. Chris Dawe who is now the senior judge at the Family Court in Adelaide, also went there. We have discussed this equality between men and women, and we think that at our school we were taught to believe that we were superior to men, so equality was a bit of a problem for us.
I think in co-ed schools there is a current view is they’re not, that women are superior, because they tend to be more diligent and more focussed, and more mature for their years.
Certainly that was what the situation when I was there. When you look at the school at the time, the one of the students at that school was, Doreen Bulbeck a Family Court Judge. She went to Norwood initially, but Adelaide used to be one of the few schools you could do leaving honours at, as it was then called. So she went there; Iris Stevens later a District Court Judge was another; Chris Dawe I’ve mentioned; Francis Nelson who is the long serving chair of the Parole Board. It had a pretty strong.
Was it a selective school, in other words did they stream according to some assessment?
Yes they did. When you arrived you had to do an IQ test and then you were put into the A, B, C, and then you were in general or commercial division. As general students we looked down on the commercial bit, but they were learning practical skills like typing and shorthand and those sorts of things. We were doing classics and maths.
Back then, there probably wasn’t the equivalent of TAFE.
If you didn’t learn it in school you had to get an apprenticeship.
What actually happened at Adelaide High School, we had a lot of students come from other schools in the later years. We had the commercial section which was equivalent to TAFE but there was also Unley Tech, which was a technical school, but they didn’t offer fourth and fifth year at high school, so a lot of students would come from other schools to finish off their education at Adelaide High.
At what stage of your high schooling did you see yourself as a candidate for university?
Well you have to backtrack a bit because Michael Kirby at the recent [Margaret Nyland] Long Lunch checked up on me, and apparently when I was at primary school I indicated that I was going to be a lawyer. I have no doubt that what I was channelling was my father’s frustration, because again as I said he was Secretary of the Transport Workers Union, and of course as a trade unionist he did a lot of appearances as a lay member in court. I think if he had had an education he would have been an outstanding lawyer. So I think that’s probably where that was coming from.
And apparently I continued to repeat this when I got to high school. The problem was that we didn’t have any money, so the chances of going to university were pretty remote. I did consider possibly becoming a teacher as a fallback position, because you could go to teacher’s college on a scholarship and train that way. But what happened was that I was lucky enough to get a Commonwealth Scholarship – in those days a Commonwealth Scholarship paid your fees at university - so that’s how I got to university. I suppose the ambition was always there, but how I was going to channel in to reality was a different thing.
Just for the record, what was the year of your birth?
Do you have any siblings?
No, an only child.
So it will be fair to say that your parents channelled their hopes and aspirations into their only child, their only daughter?
That is true. I was also very lucky in that my mother’s father, my maternal grandfather, was also a very nice man, who looked after me a lot because my parents were working. He was also very keen on education and I have this very clear memory that just as a small child, he used to read the dictionary with me. One of his favourite things that I still remember to this day, was that he would ask me ‘how do you spell yolk of an egg and how do you spell yoke of an ox?’ That’s one of those funny things I can remember from childhood. I was surrounded by people who were promoting education, except I have to say I think my parents were very strong minded, because others - in that my mother came from a large family - and they weren’t so supportive, because it was this era of ‘education is a waste of time for girls’. I can remember my father saying, ‘well if some bloke gets to marry a girl who is not completely stupid, that’s always a good thing too’.
Do you think it might have been different if you’d had a brother or brothers?
I don’t think so. I think my parents were very single minded about education, and they would have done anything they could for their children.
I will be asking you more questions about this, because I think that there’s probably one, possibly two generations of people that are utterly unaware of the level of sex discrimination that existed in the era in which you were born.
I think that’s true.
How many people know that on the statute books still today is the Married Women’s Property Act - you think well why would you need that? But you did because the Common Law said when a woman got married her property belonged to her husband.
Exactly, yes. When you talk about discrimination between the sexes, a lot of these changes in a sense are recent. One of my favourite examples of how things have changed is that it always surprises me that we did not have women on juries until 1966. Now for some people I suppose that’s a long time ago. But when I started practising Law there were no women on juries, that’s apart from no women judges or anything like that. To not have half of the community involved in the criminal justice system is absurd, but that’s how it was.
I think when the standard IQ test first was thought up, women were classified as generally substantially inferior to men, and in general terms the equivalent of male mental defectives.
I think that’s right.
How did that happen?
It’s appalling isn't it? But I think the other difficulty about it is that - and we’ll come to this later about I was trying to get my Articles and things – a lot of it you just accepted. That’s how things were in those days. Why did one accept that this is the way things were? Because while I was very lucky with my parents, it would have been very easy for them as people without an education and just working class people, to perpetuate the situation. But they saw that I had to do something better.
The Goodwood Road Orphanage in more recent years has emerged as having had a very chequered history – do you have any stories from your father about that?
He never talked very much about it, but he did not have anything bad to say about it. The only story I remember about him is that he hated mince, he would never eat it and I couldn’t work out why. He said, well the difficulty was that when he was at the orphanage this was a very regular meal that was served and he wasn’t very keen on it, and the nuns were very practical and said ‘you don’t have to eat it if you don’t want to, but you’re not going to get anything else to eat until you eat this’, and you’ve got to stand by at every recess, lunch time and all the rest of it. So after he had to cope with that for a couple of days and it was very cold, he gave in, but he never liked it thereafter.
In fact he was given the Medal of the Order of Australia for his services to trade unionism, just after his 70th birthday. We were going to have a party there didn’t come about for another reason, but he was very keen to have some of the nuns that were still around come to that party. So he didn’t have any criticism of them at all. Which is interesting, because it’s something I’ve reflected on in recent times when we have all this information about what has been going on, but he certainly never complained about it.
With your father’s union background, did you develop any political affiliation to yourself?
Well my father actually was a Communist.
Communism’s had a very distinguished career on the Supreme Court.
But I think that it comes from being working class, working conditions. He was involved in the union movement from the very early days of working because of the appalling working conditions. He was always very strong minded about that. I think it would be probably more accurate to say he was basically a Socialist, and I think I grew up with Socialist beliefs and that you’ve got to help and support people, that’s the thing, and share the wealth.
I suppose Communism has become a pejorative, but it never started out that way.
It was really the practice of totalitarian governments that gave it the bad name.
That it has rightly earned, but the social theory was probably not nearly as harmful as the practice.
No, that’s the reality of it. I think it was very difficult during war time though because –
Well and I think also there was quite a lot of naivety about what was really going on in Russia.
There’s no doubt about it, it was a problem and.
So you moved straight from Leaving Honours at Adelaide Girls High School and went to University of Adelaide?
And you would have started in what year?
1960. Same year as Kevin Duggan.
Yes - so a small law school.
A very small law school.
Not very many female students?
No, hardly any. Kevin probably has a better memory than I do, but I think the total law school had about a hundred people in it, and I think our class was actually the biggest that they had for a long time - it had about 40 or 50 in it altogether. There was a concern in that the flood gates had opened, where was everyone going to get a job, which is interesting isn't it when you see what's happening these days. I’m trying to think back - I think there were probably six or seven women in that class, something like that.
And I suspect a fairly high dropout rate.
Yes. It’s very hard to gauge, because it was a small school, and then we amalgamated a bit over the years, because there were a few other women in the school, but when we got to the point of being admitted, the year that I was admitted to the Bar, the only other woman admitted that year in March was Jenny Litchfield or Jenny Jarvis as she is now. Jay Sanders was admitted a couple of months later, in June but she actually had started the year before.
But you were well past the stage when female law students were an oddity?
Yes. Female law students were an oddity for a long time. It was very difficult in class when I look back, because I think some of the lecturers used to pick on you a bit, which was probably a good thing because it made you be up to the mark in what you were doing.
Yes. I think all lawyers have to go through a toughening up process.
You just don’t expect it to start at law school.
The other odd thing about the law school, is the fact that I spent the whole of my law school days in temporary quarters in the bottom of the Barr Smith Library. We had one lecture theatre which had no windows, and at the end of the day, you could hardly breathe in there if you had a late lecture because there was no air left in.
Oh, that’s terrible. Didn’t the law school then move to the Napier Building?
Yes, but it hadn’t been built when I was there. It started off in the Mitchell Building in fact.
When I started, the Ligertwood Building had just been finished, so we were in a nice modern building. I’ll say nice and modern building, it actually is a bit of an architectural monstrosity, it was very dark and cave-like, but at least it was brand new when I was there.
What we had, the law library was on the ground floor, in a little corner of the Barr Smith and then the lecture room was on the second floor, and I think Psychology was on the third floor or the fourth floor, something like that.
What sort of a law student were you?
Well I think I was okay. Fairly conscientious.
Of course the other thing is I should explain, is that my mother eventually moved from being a machinist and had bought a mixed deli business at Goodwood. That had happened after my father’s accident. It was one of those old corner shops that sold everything, open every day of the week from about 7:00 am to 8:00 pm, in summer 9:00 pm or 10:00 pm at night. I had to work in there after school, and of course I was still working in there when I went to uni. I had to get home and fit that in, so that was a bit daunting for a while.
That was really helping the family out.
As much or more than earning extra money.
Yes. I used to mainly do the dinner round, which was very busy, and I think it probably affected my eating habits for a while, because you needed to eat your meal very quickly, as it got very cold while you were serving in the shop. I think my mum eventually sold the shop when I was in about my third year at university, but that also took extra time, so I wasn’t working an extra job, I was working in the deli.
And back then assessment was purely on final exams which were closed book, or no books?
A pure memory test?
Which meant that some students - not all - but some students were able to get by doing most of their work during Swovac.
Yes, that used to be the deal. Of course the other thing is that the exams were held at the old Centennial Hall in summer, it was very hot.
Yes. Well it didn’t change much by the time I went, believe me. So you got through okay?
Yes I did. My academic results were actually quite good. In fact when I did it you had to do two Arts subjects as part of the first year course, and one of them I did was Latin, which I was very good at. In fact I was asked to do a classics Honours degree, but I decided not to do that but stick to the Law course.
And for the sake of the record, Latin back then was actually a not insignificant part of learning the Law, because there were a lot of Latin expressions and Latin maxims.
I’ve got a feeling it might have even been a compulsory subject to get into the Law school at that time.
I was very lucky because at high school I had a very good Latin teacher – in fact I topped the state in Leading Honours Latin. I had a very good Latin teacher.
Do you still remember it?
Some of it. It was a long time ago. What was funny about it is that the textbook was written by a man called Giles, and he taught Latin at Unley High School. Between my teacher and him it was very competitive, so I’d get a lot of extra homework, so I was very lucky in that respect and it made it easier. I liked the subject actually.
The use of Latin in Law, particularly the Latin Maxims - they were Anglicised weren’t they?
Yes they were.
Did that require some adjustment?
No, not really. I think the real benefit of learning Latin is that it helps you with English language. It’s a structural thing, it’s a good logical exercise. It taught you to think and be a very good lateral thinker. I think that’s half the process, rather than the actual language itself.
Yes. So to become a lawyer you had to do Articles?
That is right.
Which meant you had to find a legal practitioner who was prepared to take you on for two years and make a commitment to train you on how to practice law.
Yes, that’s right.
How did that go?
Well that became the problem, because it was a minimum of two years of Articles. You could start your first year in your final year at Law school, so you are doing sort of part time in effect, and then you had to have one full year thereafter. I started looking for Articles when I was in my third year. The Law school course was then four years, so I started looking for Articles in my third year.
My results actually had been pretty good up to then, so I really didn’t think it was going to be a major problem but I didn’t know any lawyers or anyone in the Law. I sent off my application to various law firms around the town. As I recall now, I don’t think I even got to an interview stage, because I was rejected by everyone. They didn’t take on female Article clients because it was a waste of time training them because they always just left and got married, so all the money and time put into training was down the drain.
And was that actually expressed to you overtly?
Yes, as I recall. That’s what upsets me now, because I really wasn’t outraged by it, it was more the stress of how am I ever going to get a job if I can’t get my Articles.
Well, I do remind both of us that this was an era where women in Broken Hill, the moment they got married were dismissed from their employment, so that a job opportunity became available for a single woman.
And women who were air hostesses as they were then, also couldn’t stay if they were married. It was a different time. As I said my main concern then was desperation, because without Articles I would never be able to become a lawyer, so all my studies would be down the drain.
What eventually happened?
My father at that stage was a taxi driver, and one of his regular fares was John Davey, who was a visually impaired lawyer, of a firm with Gun and Davey. His regular drinking companion at the Public Schools Club was John Bray QC. John Bray actually taught me Roman Law in my third year, sort of a perpetuation of the Latin situation. Anyway Dad picked up John Davey after one of these occasions, and he told John about my problem, my desperation about getting a job. John Davey was very nice, he said ‘we haven’t got a position in our firm’ but said, ‘but my friend John might have some ideas about what to do’. He spoke to John Bray, who apparently said ‘well there’s a girl in our firm, perhaps she might be prepared to take her on’. So he set up an interview for me to see Pam Cleland, who was then one of the few women practising in the criminal courts. I then had an appointment with Pam, who was in this firm Genders Wilson & Bray - The partners there were Sir Keith Wilson, Ian Wilson, Andrew Wilson was then a fairly new young lawyer there, a very handsome one, and Alec Genders was a very, very nice man, and Bunny Abbott who was Michael Abbott’s father. I think that’s them.
So I went and had the interview with Pam, who was quite enthusiastic. I think Alec Genders also was in the interview, and he said something like, ‘well would you go to court and what have you?’ and I said ‘well I am not sure as I haven’t been there yet but that should be ok’. And I remember Pam saying ‘well I go to court so, this is all ridiculous’. He did say something to Pam like ‘you’re rather exceptional’, which I thought was pretty true actually. But anyway, they said they would let me know later. I was doing exams when I was having all these interviews so it was a bit stressful. And I was sort of messed around a bit, and then Pam said ‘well look are you coming to the women lawyers annual dinner, I’ll let you know then’.
In those days there was a group of women lawyers who would entertain the students at the law school who supported them. Dorothy Summerville of course was one of those people. It is interesting looking back in time. That was just before Christmas, and I remember the dinner, it was down at the university staff club or something, and there were only about 20 people there, and that was the women in the legal profession and the women law students that were there. Pam gave me the job, or offered me the job, and then I signed my Articles just before Christmas, I remember doing that. I had to enter into an indenture, which my father had to co-sign because I wasn’t old enough to enter into a contract on my own.
That’s because back then the age of adulthood was 21.
Twenty-one, that’s right.
So this meant that you were able to do your Articles part-time during your final year?
Yes, the Articles were actually full-time, but fairly part-time. In those days at university, we had a lot of practitioner lecturers, Roma Mitchell, John Bray, Andrew Wells, Chris Legoe, so in the final year it was Eb Scarfe teaching Evidence, Roma teaching Family Law, Bill Forster teaching Procedure.
He taught me procedures.
There you go. A lot of lectures were at the beginning or end of the day, which meant that you could do your work during the day.
Yes. You gave up your deli job?
Well by that time the deli had gone, so I didn’t have to cope with that. It was a relief. It was pretty full on but I was very lucky because there was quite a good library at Genders Wilson Bray, so I’d go back to the office, and then I’d stay on and I’d use their library to study. I remember Andrew Wilson was always very nice to me if I got stuck on a problem, and Andrew would often be there late and I’d go and ask him his advice, which is interesting as we later became colleagues on the bench. I might add that when I went there, my first desk was a desk in the corridor. I didn’t have an office or a room. Michael Abbott and Pip Scales came later, and as I recall the two boys had a room that they shared, and I suspect they probably spent most of the time playing cards in there.
The lot of an articles law clerk back then was not always terribly exciting.
No it was not.
And I could have responded to the fact, you were lucky you were given a desk.
It was a very small desk. In fact Pam’s then secretary was rather talkative, so in the end she moved her out from the typing pool desk, and I ended up in the typing pool doing Articles.
And you had to do rounds?
Do rounds, yes. Good old rounds.
For the sake of history you might explain what that means?
Well I suppose you could say it was really like being a rather mundane courier, all done on foot, where you would have to go down to the Lands Titles Office to file your papers, take documents to the Court, deliver just about anything. I can remember also being asked to go and take some instruction for Will on one occasion, for someone out at Bedford Park – I didn’t have a car, I had to take about three buses to get there and I had to go and get the money from the accountant to pay my bus fare to go and do that. The other thing which was quite good where you could make some money as an articled clerk, was serving summonses – I don’t know John if you ever did that, but you got a fee. You had to be very careful about it, people who had a large dog or whatever, but that was one way you could supplement your salary, which was not great. But I remember, my starting salary was 4 pounds 7 and 6 net per week. They were very generous to me at Genders though, because I’d started before Christmas, and they actually gave me some holiday pay, and I remember I got a pay packet and I think it had 20 pounds in it. I thought this is wonderful. And it was terribly extravagant of me but, I went down town to Charles Birks as it then was, which later became David Jones, and I blew it all on a dress. The most expensive dress I’d ever bought.
I started on $10.00 a week, and when I got married I asked for a pay rise to $13.00 a week, so that I could pay the rent. My wife was working but $13.00 was the weekly rent for quite a nice little house on the [unclear] frontage, and I was able to pay that.
Just reflecting on those days and women in the law, I remember there used to be the dreaded interlocutory applications at the local court on Friday afternoons, and which were always rather scary. It was back in the day when Don Williams was one of the judges down there, he was in the local court. In retrospect he was very nice to me, but he was always rather a fearsome figure. I remember in one of my early tasks of going to court I was sent down basically just to do some fairly minor application, and I wasn’t quite sure what I was doing. So Alec Genders - I told him the story later, he denied it was true – he said ‘well look Margaret go down, it’s a routine matter’. He explained what the situation was, and he said ‘look if you’ve got any difficulties about it, explain that you’re new, and if there’s a real problem ask for it to be adjourned.’ And then he said ‘if all else fails just cry, that’s bound to get what you want’. In later years he said ‘I would never have said that’, but in fact he did, but it was also like reverse psychology, because there was no way I was going to cry. It was probably just a consent order or something simple.
As there’s no such thing now as the Local Court, you might want to clarify that too. I think that was the civil jurisdiction of the Magistrate’s Court.
Yes it was. We are talking about a time when the District Court did not exist. You had the Magistrate’s Court and the Local Court doing civil, and having the actual jurisdiction those sorts of things. And then of course the Supreme Court.
The Supreme Court was fairly small – how many judges would it have had when you were admitted?
I think there were about seven. I might be wrong about it, I’ve got a vague feeling when Dame Roma was appointed that there might have been an increase at about that point in time, but it was pretty small.
And they would have done a lot more original jurisdiction work?
And probably far more minor matters than they do now.
Well they do, and they had justice appeals, what are now called magistrate’s appeals, but a lot of those were pretty routine things. Judgement were very short I have noticed.
Yes. And trials were very short.
Trials were extremely short.
A long civil case was about three days.
That’s right, yes. And Full Courts sat, I think, three times a year. And that’s quite apart from the court vacation – the court year didn’t start legally til February, and then the judges had a month off for winter, and then they had annual leave as well. I don’t know how they ever got through the work.
Maybe there was less litigation then?
I think so. A smaller population, less litigation.
And the matrimonial jurisdictions, they did divorces in those days, marital disputes. The Matrimonial Causes Act, brought in basically at the time when I started doing law, because it come into operation in, well it’s Matrimonial Causes Act 1959, I think it came into operation about 1960. Before that if you wanted a divorce you’d have to issue a writ out of the Supreme Court.
So you did your articles and what happened then?
Well I have to go back a step. Towards the end of my first year in articles, Pam had decided to set up her own practice up at Waterfall Gully where she also lived I had the choice of assigning my Articles to another member of Genders Wilson & Bray, or staying with Pam. I was working for Pam and I decided I wanted to stay with Pam. I moved with her to Waterfall Gully, as I said that’s about a year into my Articles. Then when I was admitted, she kept me on as an employee. One of the nice things Pam did, she did many nice things for me I suppose, but one of the nice things she did, when it came to the day of my admission, she thought that it was only proper that John Bray move it. So John Bray actually moved my admission which was really nice. I found the file when I was moving at Chambers recently. I’ve actually still got the brief with his signature on it saying ‘motion for admission granted’ or whatever it was.
That’s extraordinary. John Bray sat on the bench as Chief Justice when I was admitted. But I must say that’s very mundane compared with having him move your admission.
Yes, and it was funny because at this stage my father had moved on from being a taxi driver, and he gave me his old taxi as my first car. I drove John Bray down to the Court in the taxi.
Because he never drove.
No, he never drove. Pam also had been very generous when I was still at Genders and Co, because she said you’ve got to spend as much time with John Bray as you can. She adored John and thought he was a wonderful man. Every opportunity that arose she’d say ‘you’ve got to go down to court with John’. One of the things about John, he was a very nice, humble man in his own way but he took being a QC quite seriously, so he’d never carry books and things. We’d go down to Court, and he was a big, strong man, and I’d be running along behind him carrying all the books and things. On occasions we had to get a taxi because there was so much, and I’d have to get the money for the taxi and he’d get out of the taxi, and I’d be still trying to pay for the taxi driver and juggle the books. As a result, I had a very good relationship with John, who later became my friend. Which continued the rest of my life, so that was really nice.
I said I stayed on with Pam up at Waterfall Gully. Her older brother Peter, was a lawyer, and he had been a military man. He left the military and he joined her in practice, and the firm became PF and Pam Cleland. I was still employed for a while, but not for all that long. I eventually became a partner, I went into partnership with Pam up there.
Back in those days, partnerships came very quickly didn’t they.
They did, yes.
And I can’t remember, that might have had something to do with right of audience, I’m not sure.
I don’t know.
But in any event the concept of having to wait for ten or eleven years and proving your worth, and not everyone being able to get a partnership, wasn’t the concept back then was it?
No, no it was not at all. I suppose more firms were just smaller then I suppose, I don’t know.
Yes. And you became a partner fairly quickly.
I did, yes.
But that didn’t necessarily mean you were well remunerated fairly quickly?
No. Well actually it wasn’t too bad. I think while I was on a salary I didn’t get a great salary, but Pam was quite generous once I came into the partnership, and eventually we became equal partners of course, but that was further down the track.
What sort of practice was Pam’s?
We used to do some general work, but she mainly did matrimonial work and criminal work. She actually had a very big practice in the Magistrate’s Court, and in my early days as an Articles clerk was where I first started heading to Court was in the Magistrate’s Court. Because we were also talking about a time when homosexuality was a crime, and –
Sorry, the practice of homosexuality.
Practice of homosexuality was a crime, yes.
And again because we are taking an historical record here, was that males only?
Look I don’t think the question of female homosexuality –
Was a female ever prosecuted?
No, I don’t think so. But I think because Pam was female, so in that sense non-judgemental, she had a lot of gay men come to her with their problems, and she would act for them. I remember going off to court, I actually had instructions in one of my very early cases, going off to the Magistrate’s Court appearing for a man who had been charged with a homosexual offence, and we’re talking about consenting acts between adult males, we’re not talking about paedophilia or rape or anything like that. It’s absurd really when you look back on it. I remember going into the Magistrate’s Court appearing before Mr LE Clark SM. It was then the Police Court and he was the senior Police Magistrate. When the case was called on, the Police prosecutor stood up and asked Mr Clark to make an order that all women be removed from the courtroom, because the facts of the next case were so disgusting, they were of homosexual acts between men, that they weren’t fit for female ears. Mr Clark readily made the order that all women leave the courtroom, and I was there saying, putting my hand up and saying ‘excuse me’, I said ‘well please could I be exempted from the order because I have to stay to represent my client’. In the end I don’t know who was more embarrassed about the whole thing. But that was the time, there it was.
Pam was doing a lot of other big criminal cases, jury trials and things. And I think it was the beginning of the age of specialisation and it was getting very hard to do everything, so the sort of civil work that we did really went by the by, and it was really just those two areas that we specialised in.
Tell me a little bit about the era in terms of divorce, because matrimonial law now is about property division and about custody, but it’s not about divorce, but divorce was a big deal back then wasn’t it?
Well it was, but it still is always about custody and money. Divorce was fault based that was the problem. You couldn’t get a divorce, unless you could prove that the other party was at fault. So appalling when you look back at it now. If you were relying on the ground of cruelty you had to prove habitual cruelty for a period of not less than 12 months; desertion was a two year period you, had to be apart for two years; adultery of course was the big one, because you could issue proceedings pretty quickly if you could catch someone out committing adultery. And of course it was the age of the inquiry agents going around snooping everywhere.
Do you remember William Raymond Gardiner Fluck?
Absolutely. A licensed private inquiry agent, he was always very precise when he gave his evidence in Court. There were some very funny stories coming out of those days really. You’ve probably heard some of them, the famous story about him apprehending a couple of, at it in a cemetery, and the fellow coming out and saying something like ‘Jesus Christ it’s a ghost’ and him saying ‘no it’s not a ghost, I’m William Raymond Gardiner Fluck, licensed private inquiry agent, and I have reason to believe you’ve been committing adultery’.
And another, court story. There was another inquiry agent called Frank Church who was giving evidence before Dame Roma. I read his report, and I thought ‘oh dear this is not going to be very good before Her Honour, she’s not going to like the way he’s set his evidence out’. We get into court in what was then called an undefended divorce. He was giving his evidence, and I said ‘now what did you hear?’ He was stationed by the window or something, I said ‘what did you hear?’ And he said ‘I heard the unmistakable sounds of sexual intercourse’. I thought Roma’s wig was going to fall off, she said ‘what exactly would they be’, and he said ‘squeaks, grunts and moans, Your Honour’. She immediately shut up and didn’t say another word. So it wasn’t all bad, but you know, it was pretty undignified.
You did a lot of that work?
A lot of it, yes.
And that would have been more of the bread and butter than crime?
Yes it was, very much so. And we had a very big legally assisted practice, acting for women mainly; we had male clients but I suppose it was inevitable that women are mainly going to go to women. As you probably know, I’m a devoted South Adelaide supporter, or South Adelaide tragic, particularly at the moment. I go down to games at Noarlunga. When we go down Honeypot Road, Hackham West, I often commented I made a lot of money out of Honeypot Road back in the day. Which is interesting when we think about it, because I had a lot of clients from that area who would come up to see me at Waterfall Gully. I think it was because we were female and prepared to help those legally assisted, and they were single parent families you know, they were battling.
Yes. Obviously one could have a particular perspective on what you were doing now in hindsight, but back then were you feminists?
Well it’s very difficult when you talk about feminists, because what do you really mean? I think one of the reasons we did so well in divorce practice is because we’d provide strong support for women, who have been knocked around, I don’t mean in the physical sense, but by their marriages, by the social situation and all the rest of it. So in that sense, being supportive and trying to move things forward, yes I suppose.
Pam certainly was a very strong supporter of women, I was always grateful for her support. I’ve also been very lucky of course because the other thing was that having had Dame Roma as my lecturer at law school, I had come to know her quite well. She was also a very strong supporter for me. We were very lucky in South Australia actually, women in the law generally, have had her here because she had done it that is succeeded, no one could say that it’s too hard for a girl, you know, girls can’t do it. In fact the odd thing about Dame Roma is that she was appointed to the Supreme Court as the first female judge of a Supreme Court in Australia, the same year I was admitted to practice. It was rather odd that I was the second person to be appointed after her, so it was a long time after.
Maybe we can just talk about Dame Roma for a little while. You obviously knew her very well, she broke through the barrier, but she was an extraordinarily capable woman was she not?
She was, totally.
Do you think that’s what it needed at the time, in other words it had to be someone exceptional?
I think it probably did, because it needed someone with great stamina, because it was really pretty tough when I look back on it. If I could go back to talking about women on juries, she was responsible for getting women on juries. She had tried and tried for years, and I don’t know if you know the story about how it all came about in the end, that she persuaded the government that they should have women on juries because it would save them an awful lot of money because you didn’t have to pay women as much as men, as jurors, so there would be a cost saving. Now I heard that story told by someone at a women’s function years later, and some of the young women there were appalled, ‘why would you say that, that’s terrible’ and all the rest of it. But it was a means to an end. It’s overlooking the fact that these were difficult times and you had to be tough, and you had to do whatever you could to achieve what you did. And she achieved it.
Yes, so in other words she knew how to work an all male system.
She did indeed, yes.
For the advantage of women.
She was a very strong personality.
But that indicates a certain level of pragmatism.
Yes. Back then presumably if you were what we would now describe as a feminist, you had to be very pragmatic, because there was no other way to achieve your objectives.
Well that’s exactly the problem, you can’t just sit back and say ‘well it’s terrible’, or ‘everyone’s being mean to me and it’s not fair’, because that doesn't cut it. You’ve got to just do it, that’s the thing.
Yes. So when she was appointed to the Supreme Court, is it your understanding that there was anything behind it, was it purely on merit or was there something more to it, was it political as well?
I think it had to be political. But I think it was also merit. She was an outstanding lawyer, and she had become silk actually. She was a matrimonial lawyer for a long time, but she had been involved with a lot of the trade unions, with the Jack Wright and the sheep shearers and all that demanding work that had got her the QC, when she was appointed the silk. Of course we are talking about a changing time, the changing government, the Labour government, and Don Dunstan, and the anti-women thing was less. There was a bit of competition because there was another woman over in Victoria called Joan Rosanove, who was a silk, who was I think expected to be the first woman to be appointed, and Roma pipped her on the post. I think she’s always been a bit dark about it actually that Roma got it first.
And that was during the Dunstan era?
Of course he was a great social reformer.
But at the same time if Dame Roma was around now, she would have been selected simply because she was the best.
And there would have been no other thought given to it.
No, of course. I gathered from things she said over the years that one of the big debates about when she was appointed, was not the fact that she was appointed. (and she was very well received by everybody), but what were they going to call her, because judges in those days were called Mr Justice so-and-so. And you can’t really call a judge Miss Justice can you, because that’s not good. And to call them Mrs, which is what some of the English do, Mrs Justice is probably worse than Miss Justice I think.
Well apart from anything else she was never married.
No. So that’s when the decision was actually made, and she said, the person that actually made the decision about dropping the prefix, the Mr or the Miss, was actually Napier who was then the Chief Justice. He was a quite elderly man in those days because he had a life appointment, but he was the one who made the suggestion that they should all just become Justice, so that would make it better for her.
Did she say how he received her?
Very well. She said he was very gracious and received her very well. I don’t think she had any real complaints about her brothers. I do remember her saying on one occasion, when I was discussing my appointment to the Supreme Court and expressing my concern about doing some of the appeal work, I said ‘I don’t know how I’m going to manage with that’, she said ‘oh you’ll be fine’. She said ‘the only trouble is Margaret I can tell you, I come out of the Full Court on a few occasions and I’ve had to say to my brother judges, it would be very nice if we could actually hear counsel say something this afternoon instead of you two talking on all the time’. You’d be a brave man who’d take her on I think.
So her time had come, but in a way she symbolically opened the door for you?
She did, there is no doubt about that. For women generally, everywhere.
For women generally, but I say to you because you happen to be next on the Supreme Court.
It had to be someone, but it turned out to be you.
Alright, well let’s keep going with your time with Pam Cleland. Presumably after your period of training and articles, you were expected to cope on your own in court work?
And in crime you did jury trials?
I only did a couple of jury trials. I actually won both of them so I probably quit while I was ahead. I was a junior lawyer, Pam was doing all the criminal stuff in court, I was running the Magistrate’s Court practice. I did a lot of work in the Magistrate’s Court, and was dealing with a lot of the matrimonial work. Pam was not very good at pleading, she found it rather tedious I think. So I used to end up drafting quite a lot. There used to be petitions in those days, and I used to do basically the solicitor’s work and she was really doing the barristerial work, and then kicking in with some of the other stuff as well. It all worked pretty well.
So a lot of your court work was the matrimonial work?
And that was in the Supreme Court?
Well it was, yes.
And that would have included contested matters?
Oh yes it was. I can remember one of my early cases was a defended divorce, Malcolm Fricker was on the other side as I recall, and it was one of the first occasions on which they had actually took down the evidence in shorthand rather than on the old manual typewriter, so it made a much speedier case.
So when you started, evidence was taken in the Supreme Court on a manual typewriter.
Yes. Three copies, [unclear] and all that stuff, yes.
Yes I’d seen it, I’d certainly seen it in a Magistrate’s Court.
No, they used to do it in the Supreme Court too.
And how many years were you at PF and Pam Cleland?
Well it sort of changed. Peter retired from the practice and I stayed on with Pam, and then I can’t say when this was exactly, what year, but Pam then decided that she was really not interested in continuing the solicitors side of the business, and that she was going to go to the Bar. She had another premises on the same property, it was quite a big property at Waterfall Gully, so she moved over to the other side of the garden in effect, and became a barrister. I took over the whole practice, which I ran by myself for a year, which was very hard work, because I was still doing a lot of Magistrate’s Court work, and Police work and doing the matrimonial. I was in desperate need of getting some help, and I was talking to Dame Roma about it at one stage and said ‘it would be good if I could find someone to join me because I can’t be in all these places at once’. Piers Plumridge at that stage was her Associate, (and been her Associate before), this was the second time he was her Associate had wanted to come back, but she pushed him into applying to me for a job. So he actually came to work for me. We continued the practice for a while but it was just expanding, it was just getting bigger and bigger. So I then approached David Haines, who was then working Povey Waterhouse & Basheer, and he was doing their matrimonial work. He then came into partnership with me. Piers still continued to work for us, and we changed the name - we kept Pam’s name in the firm but we became Cleland Nyland and Haines.
Yes. But it was really Nyland and Haines.
That’s right, just kept the name because it was an advertising thing really. At that stage really it was a matrimonial practice.
How long did that last for?
Well again, I forget in the years now. That lasted for quite some time, but as I said the practice was growing and we were moving to an age of technology where you had to have more space; there were no longer manual typewriters and we were changing over, and you had to have things like fax machines, and we just ran out of space. The end result of all that was that David and I bought a property at Norwood and we shifted the practice to Norwood and then changed it to Nyland Haynes & Co. The three of us continued working, Piers continued on the firm, but David and I were the partners.
Did you maintain an association with Pam Cleland?
It was a bit difficult for a while because it was not a happy parting, I’ll put it that way. That was a bit difficult for a while. We sorted that out in time, it was just a bit emotional I think, having been together for so long and suddenly moving out, seemed to be a bit disloyal. It was just a business decision basically, it had to be. We continued the matrimonial practice, and by this stage of course the Family Court had been established, and we started practising in the Family Court jurisdiction. By the time I ended up being appointed to the Bench, I had the biggest family law practice in South Australia.
How many solicitors did you and David have at that stage?
We had about four I think. It continued to be a small business, but very big clientele.
Yes, big by the standards of the era. There has been a tradition in South Australia of specialist matrimonial practices.
And probably more than that, they don’t seem to have - until fairly recently - fit in all that well with larger diversified firms.
They seem to cope better as stand alone practices.
Yes, I don’t know why that is, but it just seems to be the case.
The other problem that was occurring, particularly once the Family Court was set up, was that the listing systems in the Family Court didn’t fit in with any listing systems in the Supreme Court or later the District Court, so it was very hard for practitioners to be able to liaise with the two, because it just didn’t work.
Which meant that if you didn’t specialise, it was very difficult to appear in both jurisdictions?
That’s right, because if you were going off to chamber application in the Supreme Court for example, you’d be given a fixed time, 10:30 am Friday or whatever. I don’t know if it’s changed now, but in the Family Court you would be in the 10 o’clock or the 11 o’clock or the 12 o’clock list, but you’d have to be there for that whole hour, you didn’t know when you were actually going to get on. So that was a different listing, which added to the need to specialise.
Who were the first Family Court judges appointed in South Australia?
The first, John Marshall was appointed as the Senior Judge, and Kemeri Murray. Now Kemeri had already been appointed a judge with Ian Burnett, because they’d set up a state Family Court, which was operating just before the Family Court came into operation.
Would have been like Western Australia?
Yes. In fact Keremi actually had an appointment as a District Court Judge, and I remember her saying, she was getting a bit panicky when the Federal Family Court wasn’t being set up, there was a delay in setting it up, because she thought she might have to go and actually be a District Court judge, which was a bit frightening for her.
And do criminal trials?
Of course. Ian Burnett also had an appointment, but he stayed on the District Court, and I think he was always rather disappointed that he wasn’t appointed to the Family Court, John Marshall was. So it was John Marshall, Kemeri, and Tom McGovern, and then John Gun.
Yes. Was it at all a surprise to you that Pam was never offered an appointment on the Family Court?
Not really no. She would never have taken it anyway. She hated the Family Court, she really didn’t like the jurisdiction, she didn’t like it at all. But also Pam in her early days had a bit of a reputation for being a bit of a wild girl. And she was a rather extraordinary person, such a talented artist, and she had a social work degree.
She might have not been seen by the government of the day as judicial material?
She wouldn’t have been seen as judicial material at all I don't think.
Okay. So you got the offer for an appointment on the District Court.
Yes I did.
What about your commitment to a very large legal practice and the Family Court work - how did you sort of process all of that?
Well that was actually, it was very difficult because I received a phone call from Chris Sumner who was the Attorney General at the time, and he asked me about it, and I said ‘no, I don’t think so’. He said this is not an offer, it’s just an expression of interest. I thought there’s nothing wrong with that is there, I won’t get the job anyway. It was funny because it coincided with another position I held at the time - I was the inaugural chairman of the Social Security Appeals Tribunal, and this coincided with them changing over the system, and setting up more in line with the AAT type structure. There was question of having to apply for the job, I don’t know what it was, whether it was president or chair or whatever, it doesn't matter. This particular morning came about where I had an interview with Brian Howe, who was then the Federal Minister for Social Security, and I remember it was up in King William Street somewhere. It was quite clear after I’d been talking to him, that I had gotten the job with this new role. I then went down to the Family Court which was at the Black Stump in Grenfell Street, and was in the counsel room there. My office rang and said they had a call from the Attorney, which I took in the counsel room, and he offered me the job. I said ‘okay, when would I have to start?’ It was like in three weeks time or something like that. The thought of how I was going to extricate myself from practice was a nightmare. It did become a nightmare. I got permission to tell David and Piers, who by that stage was my husband, but I couldn't tell my clients. So I’m saying ‘well I’ll have to arrange for someone else to do this’ and ‘I’m not going to be able to do this for you’, and they’d say ‘oh no I’ll wait, can we put this off until you’re free’, and I’m having to go ‘well I don’t think that’s going to work’. It was just a really difficult period of time to get through all that. Then ironically, the day before it was to be announced I had permission to tell other people, and I wanted to tell Pam in particular. So I did all that. And then they messed up the appointment, because they didn’t take the right papers over to the Cabinet. Chris rang and told me and I said ‘oh dear I’ve told some people’, and I think he did say something like ‘well this place leaks like a sieve anyway so it’s probably quite well known’. That’s how it’s all came about, so then off I went to the District Court.
And how was that?
It was a very odd experience. Don Brebner was the senior judge, and I didn’t really know Don at all. I knew of him, but I’d never really met him before. I think he must have wondered what he got landed with. But he was wonderful to me, and he made my life wonderful, I really enjoyed being in the District Court.
The first week was one of those unlisted weeks when there was nothing much on. I couldn’t get over the quiet, because in the family law practice the phone goes non-stop. I was in this office where I’ve got no files and nothing around the place, it was very disconcerting for a bit. I had an advantage because of course I had a few mates there by that stage. Michael Bowering - we were admitted together - he was in charge of the planning section of course.
That was by the way how Don Brebner came into the District Court.
That’s right, I know.
He came in as a specialist planning judge, and he’d had no background at all in planning.
Yes. Jack Hume was the Licensing Court Judge. Tony Bishop was there, and of course Andrew Wilson was there, who I’d first known when I was an Article clerk. Nick Birchall was there, and I’d known Nick from when I was doing some of the criminal work, and he’d been a friend of Pam’s and we’d become good friends before I got to the Court.
Obviously you had a busy practice, you were constantly in contact with other members of the profession, particularly in your jurisdiction, and it would have been largely professional but there would have also been quite a lot of social contact as well. What was the impact of being appointed to the Bench on all of that?
It is difficult because you do suddenly get cut off from that social interaction. I had very big sort of social contact, just by reason of the nature of the practice, and working in what was then quite a small profession, so I had a lot of friends around the place.
And the matrimonial family law has always been very clicky as well.
Exactly. So you’re then in a much more restricted situation. It was a very odd experience at the time, but I think you just settle into it. One of the things that I enjoyed when I was appointed to the Bench, by that stage I seemed to be in an awful lot of committees, and thought at last I can resign from all these committees’. I found I was having to have all these meetings after work. But then I was very quickly on a lot of new committees at the Court. Don put me onto a lot of committees, which was nice.
I had a rather daunting experience in the first few months that I was at the Court. I went to a Judges conference over in Sydney, and I was asked to comment on something at a paper, and there was a Judge, not a very easy Judge, who was a Chief Judge at the time. After I’d made my comments he stood up and really denigrated me. He just said ‘you don’t really know what you’re talking about’ or something, it was a totally humiliating – we were talking about case flow management actually. It was a totally humiliating experience and I was just about in tears afterwards. I thought ‘everyone’s going to think I’m stupid and this is not a good way to start’. I became a bit of a cult hero though, because his judges were all saying ‘oh you know, don’t worry, hear how he sort of treats us’ and all the rest of it. And there it was, nothing was further said.
When I got back to town, back to work, Don used to write me little notes or things, and said ‘okay I’ve got an idea’. He had this idea of setting up a system in the criminal jurisdiction of case flow management, where we’d do what were then called status conferences. There would be a small team to do it, which was going to be him and Nick Birchall and me. He showed great confidence in me. That’s how the whole practice directions in the criminal jurisdiction started, it actually started with Don all those years ago.
You must have been reintroduced to crime in the District Court?
I was. The funny thing was that when I first got to Court Don said, ‘we’ll leave you in civil for a bit, just to settle in’. I said ‘I don’t know about this criminal stuff, I haven’t done crime for a long time’. He said ‘oh Margaret, you will probably had the same experience as the rest of us’, and I thought it was going to be a good thing but he said ‘it will be the worst day of your whole life’. I thought ‘thanks Don, that’s a great help’.
So he put me in civil and I was doing personal injuries claims and things, which I also hadn’t done for a long time. But I got through it somehow, and I had to go and get a bit of help from my mates around the place. The thing about it is that the civil courtrooms in those cases were very quiet, so it all went okay.
I then got to do my first criminal case, and of course you just get allocated a case. I got the file, and I thought oh dear these criminal lawyers they’re all smart people. They’re going to catch me out and know I don’t know too much and all the rest of it, and it’s going to be horrible. Anyway, there’s a certain procedure at the beginning of every jury trial, you’ve got to empanel the jury and you’ve got to tell them about whether they should or should not be on the panel. So I got what was then the chief clerk, to prepare a cheat sheet for me which says what the judge has to do. So I get into Court and the man was charged with possessing cannabis for sale, it was a pretty straightforward case really. So we got going, not going too badly, and the defendant starts giving evidence, but the jury got the giggles. Going into the criminal court, there are people everywhere, it’s a very noisy busy Court. This defendant started giving his evidence - I think he was talking about making marijuana cookies or something - and the jury got the giggles. It wasn’t even about anything that was funny particularly, it was just someone got started and it was one of those situations when you can’t stop regardless. I thought God I don’t know what to do. So I thought I’ll ignore it, the problem will all go away. I just kept making notes. It got worse and worse and I was conscious of people looking up at me and staring at me, waiting for me to do something. In the end I shouted at them and I said ‘this is a quite serious matter, so you should behave’ or something like that, and I think they were so stunned at my outburst that they shut up immediately. And then, which I should have done as the first thing, I adjourned the Court, which of course is the obvious thing to do isn't it? You just say ‘I think we need to take a break’ and out we go. But I still remember that, it was just terrible. The poor defendant ploughed on not really conscious of the fact the evidence had caused such hysteria in the courtroom. So that was my first jury trial but it got better after that.
How many trials do you think you did before you started feeling comfortable about your role?
That’s a hard question to answer, because over the years the cases I did got harder, particularly when I went up for to Supreme Court. You never feel comfortable because you always feel on edge. I’m always worried about things, anticipating what can go wrong. You have to be alert. But probably fairly quickly I got into the routine. I discovered, which was an odd thing in a way, that criminal lawyers are like family lawyers – I always used to say that crime and family law go together, it’s all about people behaving badly. I was never very good at the stuff which is all about rules and regulations. I think the third month I was at the court I was a short list judge which was basically the chamber judge for the month, and I could never remember which rule meant which. In later years I was sharing the third floor of the Supreme Court Library Building with John Perry. John Perry was all about the rules and regulations and knew them backwards. He hated the criminal stuff. It just was a personality thing. I said I obviously had the messy style, and he had the precise style. I don’t know which comes first, what attracts you to it. I settled in fairly well I think, and of course ended up doing quite a lot of criminal work.
On the Supreme Court bench, that’s where your main reputation would have been?
That’s how it ended up; yes it was, definitely.
So in a sense the District Court was your training ground?
It was. Because I’d had the advantage of doing some smaller, more routine trials and that.
One of the things that you hear from time to time is that judicial promotion is inherently undesirable, because there is the prospect of judicial promotion being a corrupting influence. It might make some people lean towards the government of the day in the hope that they will get promoted. Now I know it is pretty difficult to apply that rule to the High Court, because traditionally a lot of the High Court judges have come from the Benches of other superior courts, but do you have a view about promotion from a District Court, intermediate court to the Supreme Court?
Well it’s a bit different, what happened to me. Interestingly enough of course it happened initially too, because you had Bob Mohr and Don Williams who went from the District Court up to the Supreme Court.
Yes, and then I think I was sort of the next, and of course there’s been a lot since. None of those, you would have thought were obviously they’re tailoring their decisions to fit in with anything like promotion. I’ve always thought it was rather interesting when people talk when governments are about to change, and there might be an appointment in the wings, they want to get their appointment up before the government changes. I’ve actually never, I must say in my life, perceived judges having a political bent one way or the other. I couldn’t tell you which judges were appointed by which government. It might be a problem that’s occurred in other states, but I don’t think it’s happened here. You do get a bit of a bias from people from being prosecutors or defence counsel in their earlier life, but that’s just the personality situations, nothing to do with looking for promotion. It’s certainly not been a problem, and I don’t really have any strong views about it. It’s really just the best person for the job.
There are other problems about being female, and I think what always worried me about appointment to the District Court and also to the Supreme Court was the token situation. I think it’s a cross I had to bear - particularly the Supreme Court the perception that perhaps it was a token appointment and you’re not up to the job.
Well you say that that was a perception. What's your perception?
I think it was just sheer terror.
The problem about it was that again I had to face Dame Roma who was my mentor and my very good friend, and it became quite clear on both occasions she had been consulted. If we go back to the District Court days, there actually had been a problem that you’re probably aware of, that they’d appointed Frank Moran and Phil Rice to that Bench, and they hadn’t worked out and had been a bit of a disaster.
We were in a socialist government, wanting to be doing the right thing by women, so there was that. Iris Stephens was already on the Bench, so I was following on from her. In the Supreme Court it was more complicated, given the superior court. But again as I said I consulted Dame Roma, and she just said ‘nonsense’. I couldn’t turn it down, I didn’t have a choice, so there it was. But there was a feeling and I know I was aware of it, that some felt that it was really other people would have been better and that I shouldn’t have been there. I might say, it was Chris Sumner who offered me the job, and when he offered me the job I remember saying to him, ‘oh good heavens Chris there must be someone better than me to take the job’. And he said ‘well who are you suggesting?’ And I said ‘I don’t know’. So there you go. It’s a profession, and I think people do have their ambitions and felt a bit slighted by me going up when I had come from this funny family law practice.
But judges have had all sorts of origins in the practice of law haven’t they?
Including the current Chief Justice of the High Court, whose early years of practice were the native title and minor crime. He tells the story about when he got married, some of his main clients came to the wedding, and they tended to be prostitutes and alcoholics.
The funny thing about being a token appointment, one of the things that really worried me was when we got cars allocated to us as part of our salary package, and I thought I know what's going to happen, I’m going to be the first person to have a car accident, and they’ll say ‘see women can’t drive, can’t judge, they’re just all hopeless’. That’s a very tense sort of situation to be in. Fortunately it was resolved, because one happy day Judge Rogerson in the District Court came through the gates of the Mill Street car park, and his foot slipped on the brake. I think he took out about ten or 15 cars in the car park.
So he set a precedent that no one else could ever equal.
Absolutely. I remember Tony Russell was one of his colleagues in the District Court, and someone rang Tony and said ‘oh your car’s been involved in an accident’, and Tony said ‘no it couldn’t have been because it’s in the Judge’s car park’. So that was a great relief actually.
Arthur Rogerson was one of my law lecturers actually. I remember consulting him when I was a first year student, because I got called up for national service, about whether I should go in or defer. He gave me very bad advice which was ‘go in and have a career in the Army’. Which fortunately I didn’t follow.
He was a nice man Arthur.
Yes, he’s a lovely guy. So, up to the Supreme Court you went.
Yes, up to the Supreme Court.
How were you received?
I was well received.
Who was the Chief then?
Len King, Chief Justice. I think he wondered a bit what he’d struck. One of the funny things about it was that he, arbitrarily without consulting anyone, decided that I should go into the chambers on the third floor of the library building which had been created for Dame Roma – mainly because they were the only chambers in the Supreme Court that had a lavatory attached to it. I think this was all about women needing lavatories for some reason or other.
Well you couldn’t share facilities with a man.
That’s right. Except Roma when she had been made Acting Chief Justice, moved downstairs, and she said there was all this carry on about lavatories, and she said ‘well it’s simply fixed, you just put a lock on the door’. Robin Millhouse had been an incumbent of those chambers for many years, but he was turfed-out by Len, and he moved down to the downstairs chambers where Michael White had been which was chambers currently occupied by John Sulan. That created its own problems, because Robin had a certain style and certain habits, and one of which of course was cycling in and taking his clothes off and changing and what have you.
As long as he replaces then with other clothes, that’s alright.
Well he did, but then he’d hang his clothes out and things, and it was a bit difficult. Anyway, he moved downstairs and there’s, a sort of bathroom, lavatory opposite, and he apparently moved some hair shampoo or something like that in there, and some of the other judges got a bit nervous about what was happening. Some of the judges were saying, I think it would be really better if you were down here with us. Robin was a very nice man, and I always had a good relationship with him. Of course Kevin Duggan was there - we had done law together - and Ted Mullighan was there, so I had a lot of good friends at the court as well.
I do have to say this, that when I went to my first monthly Judges meeting - it was in the little conference room - I went in and sat down. Being new I was there early, but when other judges arrived they said ‘you’re sitting in the wrong place’, because they sat in an order of seniority in those days, and so I should have been at the bottom of the table not at the top.
I don’t know if it still happens, but the major formality which occurs is where your mail goes in - it’s the sectional letterboxes, in the corridor - every time someone retires the box moves up which is not all that convenient if you are short, because you get into the boxes higher up which are difficult to reach. Anyway, that’s just one of those seniority things. I think a lot of that went with John Doyle of course, but it was very strict in those early days.
And probably not so formal under Chris Kourakis either.
No. Well I was only there very briefly for Chris, but Chris is a much more informal person.
Did you find the work significantly different?
What I found the most difficult was the Full Court because Full Court is concerned with a lot of commercial work, and I’d never been a commercial lawyer. I’d had to do commercial type advice and decisions as an adjunct to the matrimonial law, but I wasn’t so involved in issues relating to corporations. I always found that a bit of a struggle. I was very lucky as far as planning was concerned, because I seemed to almost always end up in Full Court with Bruce Debelle, and I was always able to persuade him that he was brilliant about planning, (in which he was) and he’d be able to help me. He’d say ‘Margaret you just want me to write this judgement don’t you’, and I’d say ‘yes please’.
Bruce wouldn’t have needed a lot of persuasion surely?
Bruce and I had a good relationship. He was an expert on planning.
He was actually an expert on many things.
He was indeed, that’s right.
One of the funniest cases we had, Bruce and I were on the Full Court with Bob Mohr – it was a matter that had come up by way of a Magistrate’s Appeal, and it was a case where a man had been charged with being in possession of child pornography. This man had been going around snapping pictures of little children in odd sorts of places, like he’d go to little Nippers and he would be in the sheds where the kids were changing bathers and things, and sometimes in the lavatories on the pageant days. What he was doing was disgusting. The problem was that at the time there was a provision in the legislation which said that when assessing what was child pornography, you had to disregard the purpose for which it had come into being, it was designed to cover people having a pornographic picture which they claimed had been created for artistic purpose.
So it was more of an objective test?
Yes. It had come up to us in the Full Court on a set of agreed facts. We talked about it and Bruce said, ‘well I think perhaps we should look at some of these pictures’, (it’s was video film), ‘to see what we are talking about, because we don’t really know’. Bob being Bob said ‘it’s absolutely disgusting, quite clearly he’s guilty, we don’t need to give this any consideration. So Bruce and I discussed it and we thought perhaps we should inform ourselves properly so we had some idea what we were talking about. I remember going up to Bruce’s chambers and sitting there drinking cups of tea, watching these videos. It got a bit tedious because there were such a lot of them, so in the end we divided them up between ourselves. I took some home, and I remember watching them at home. I’d got the Schützenfest up at Hahndorf or somewhere, and it was not good, it had a lot of men and boys basically peeing into a creek holding a beer in one hand and the obvious in the other. So that wasn’t too good. But the interesting result was that when we looked at it objectively, a lot of the stuff wasn’t pornographic, because the videos with children were similar to what you’d see on funniest home video type thing.
It was just more indiscreet?
Well it was clearly for his own prurient interest but so that was the problem, because you had to disregard that aspect of it in the terms of the legislation.
But what if someone’s perversion was women’s shoes, that’s not pornographic.
That’s the problem. Anyway we didn’t persuade Bob, but Bruce wrote a very good judgement with, which I agreed. And they changed the law afterwards, because it was obviously not designed to cover that situation. But I still remember just sitting with Bruce in chambers, and having a cups of tea and a biscuit. Very good stuff. Full Court has its interesting moments.
Tell me about your parallel career with your judicial career, which is I suppose your association with your favoured causes – what were the things that you were really out to promote? We’ve obviously got the [Margaret Nyland] long lunch, which has now become a South Australian tradition, but you’ve been involved in many things haven’t you?
I have, over the years. It’s a bit hard to know where to start really.
I’ve always been very conscious of that because so many people have helped me, and it’s probably part of my upbringing that you’ve got to give things back. So I’ve always tried to be supportive not only of women in the law, but young people in the law. I feel very strongly about that, and I think things are getting more difficult, they are not getting easier. As I said, it’s not a feminist thing it’s just young lawyers generally. I think as an older lawyer you’ve got a duty to support the younger ones.
One of the wonderful things about being a Supreme Court Judge, for me, was the fact that I had all these lovely associates. These young lawyers would come along and work for me for about a year. I seem to have bonded and had strong relationships and supported them. I still see all of them and have contact with them. They’ve all done extraordinarily well, so I’m very proud of them all. Not having had any children of my own, that’s been a terrific thing.
I of course have had a long association with the South Adelaide Football Club, as I mentioned earlier. People get surprised about the fact that I’m a South Adelaide supporter, when South Adelaide’s home is down at Noarlunga. But of course they weren’t always at Noarlunga. I grew up in the City, so if you lived in the City you either supported the South or West depending on where you lived in the City. If I go back to my earlier years, being at Gilles Street School - the star old scholar of Gilles Street was Jimmy Deane, and one of my treasured possessions still is the autographed photo that I got of him while I was still at school. In later life I met him again at the South Adelaide Football Club, and we ended up being joint patrons of the Panther Club, which is the volunteers fundraising section of the Club. I have, just a few months ago, written the foreword to a biography of Jimmy Deane written by the Club historian, which we’ve just launched and I’m promoting that right left and centre as far as I can, because it’s a really good book. It’s about football, not just about South Adelaide. It’s a snapshot in time really, of how things used to be.
The funny thing about the football. I used to always go and it was one of the things that was very much the focus when I was growing up, but then I married Piers. Piers is not interested in football, and is probably the only person in the world who has never been to a football match. So I didn’t go for a long time, and then as it happened Piers and I eventually parted ways, and I decided that it would be a good idea, for relaxation, to go back to the football again. It coincided with my best friend also having grown up, (although I didn’t know her when we were young), a South Adelaide supporter, much the same thing, she said it will be good relaxation. But of course there is nothing relaxing about going down to South Adelaide. We eventually got involved the club and all the rest of it. Of course I’ve continued on – I am now joined patron of the Panther Club with Peter Alexander, who is a former president of the Police Association but he’s now a lawyer. Peter and I share a common bond in that we are the only two people we know who were born in Quambi on the South Terrace. So we bond over that. More recently I’ve just finished working on the Boundaries Commission, to divide up the former Magpies zone. That’s been an interesting exercise, a bit of a blokey exercise. Very nice people on it, so that’s been an interesting and has been keeping me occupied.
Law Foundation was terrific because it’s always nice running a committee which basically is only concerned with giving away money. I chaired the Foundation the whole time I was at the Supreme Court. And that was good. I think we achieved a lot during the time I was there, with a couple of the projects that we set up. Of course the Law Society has also had the benefit of a lot I’ve done because –
Well this is one of them.
Yes I know, this is one. There are also the fellowships and the internships that some of the students have been able to do overseas.
Yes, some of the students that have been awarded scholarships or internships –
I believe the Foundation Fellows have done some fantastic stuff.
So that was a very rewarding thing.
I’ve been to a couple of the award presentations, and you get people with an Honours Law Degree and an Honours Engineering Degree, or they’re doing a PhD in German History.
One of the helpful things about the engineering degree is that Stephanie Wilkins - she and her husband, both became Fellows - she has an engineering degree, and I remember was on the Full Court with John Sulan and Ann Vanstone with respect to a case, in which the mast of a yacht kept breaking or falling down or what have you. It was very hard to understand all the details, so I we had to get Stephanie explain this to us?’ We were people who didn’t understand the intricacies of engineering. It is amazing the way students do things across the board now, all sorts of interesting sort of combinations, which is good.
Yes. Traditionally the dual degrees in our era were Law and Arts. And more recently certainly in the commercial terms, it’s Law and Commerce, or Law and Accounting. But you do get some interesting combinations including, if you want two really tough courses, Law and Medicine.
Oh I know, yes. There’s also been a great reversal, because Law now really is almost the upmarket Arts degree, so it’s a sort of change of situation.
Because not all Law graduates could possibly hope to become lawyers, there’s just not enough space there.
Exactly. Last year I made the speech on graduation day to the Faculty of the professions. I must say my heart sank. I think there were about 300 law students graduating, and that’s only at one law school. Work is hard. I know that now there are more opportunities in other fields, whereas I think the time when I was doing law, if you were doing law you either became a practicing lawyer or became an academic, there really was not much else that was on offer. There’s a lot more on offer now, but the trouble is that there are a lot more people who can’t get jobs. And that really worries me.
I think that it would be fair to say that there are a number of people that are disappointed, because they do want to become legal practitioners, and there’s just not the scope for it.
There’s not, and it’s not going to get any better. I think some of the government legislation is creating a problem, because it’s reducing some of the opportunities.
It now means that the people with the best chance, apart from the very, very top students, tend to be people who have contacts within the profession. So the likes of you and I would have had no chance at all.
No chance at all, no. It’s one of the reasons why the position of Associate to Supreme Court Judge has become so popular you get lots and lots of applications, because I think particularly the DPP treats the Supreme Court almost as human resources centre, because if someone’s become a Supreme Court Associate, it looks pretty good on their CV when they’re applying for a job at a place like the DPP.
Yes. The firm that I’m now a consultant in, Cowell Clarke, we seem to be an employer of choice, which means we just get swamped with applications as well. It’s a bit sad because there’s so many hugely qualified people.
That’s what is so frightening. I know just looking at Associate’s applications, it’s just terrible because they are all good. It’s just a question of how you sort them out. Judges have different systems of sorting them out. Mine was probably one of the more unusual techniques, I used to find out whether they could cook, whether they could make good coffee, and whether they were allergic to cats. I forgot to ask one of my associates, (who has just become a Law Foundation Fellow), whether she ate meat, and because of that I ended up with a vegetarian. Which mightn’t seem much, but it was a bit of a problem because I had a very good PA who used to organise lunch for me most days, as well as the Associate. I know some other judges make them do lots of other things. But I have to say I’ve had very good bunch of Associates.
One of the issues that still exists in relation to women in profession, is the role of the barrister, and the problem is that there are plenty of women going to the Law, there’s now at least 50%, maybe even higher.
I think it’s higher.
There are a lesser percentage of women going to the Bar, but it’s still quite considerable. What we are not seeing is women going, taking silk, becoming senior counsel at the Bar, at nearly the same rate as men. On the assumption that it’s not because of a lack of talent or ability, it has to be something else. Do you have any thoughts about that?
If I had the solution I would probably get a very high decoration, because it’s almost an insoluble problem. I don't know what the difficulty is, because all the facts you just said are right. We know that there are problems about family commitments and that it takes women out of the profession and what have you but you’ve still got some very good women who are doing the work, and who have families. I think one of the difficulties, and I haven’t quite got my head around this but I raised it with someone the other day, is that if you look in what I call the civil or the commercial sphere, there are probably a lot of very good women in firms who should be appointed to the Bench, or the silk or what have you. I don’t know who they are because I don’t see them in court, but they are undoubtedly there. But as I understand it there is still the undertaking that in effect if you are going to take silk you have to leave your firm. I suspect that a lot of women with families, might not want to give up the security of the backup of a firm, and risk setting up work at the Bar, and perhaps an apprehension that perhaps they might not be as favoured as men in the commercial sphere. I just don’t know. You don’t see many women coming from the commercial side of things, or the civil side of things, taking silk or being appointed to the Bench. It’s those who are in the criminal stream that tend to get the appointments. I suppose part of that is they are probably more visible, because they’re appearing in Court. But I just don’t know.
This is interesting, because there’s no doubt now, particularly in the larger firms, they are a lot more family friendly.
Oh yes, they are.
And you get a lot of females at a high level, including partner level, in commercial firms, who are able to work part-time, or take six months off, or even more, to have a child. But as a Barrister you’re a sole practitioner.
That’s what I mean - so why would you want to give that up? You see that’s the difficulty I think, or it’s a difficulty.
Are you suggesting then that there should be more appointments to the Bench, direct from the senior solicitors?
Well no I’m not making any suggestion, I’m just saying I think that there are probably people in those roles who are very much eligible. But you can’t make someone apply for silk, you have to apply, and if you’ve suddenly got to move out of that family friendly environment and be a sole practitioner, it’s not so easy to do. I think it’s not the only problem but it’s one of the problems.
Of course in your lifetime in the law, that wasn’t always the case. People could be appointed silk and still remain a partner in the firm.
That changed. I think it was Chief Justice King that changed it from memory, and that quite a long time ago now.
Bob Fisher remained a partner of Fisher Jeffries after he was appointed QC, and I think there were a number of other examples.
One of the dilemmas about this whole issue about women, and it’s very current of course, because the current appointment for silks is approaching. Usually the appointments are made September/October some time. But a number of people have spoken about it, and again I get back to this civil side of things. As I have said (because I never really did a lot of work in that area), I know that there are women there, and it would be helpful to know if they were going to be making an application. The Women Lawyers Association I believe is on the consultative group for the Chief Justice.
It’s no good saying, you’re not appointing enough women, unless you can say here are some women who should be, or want to be, or what have you and they are being overlooked.
John Doyle made that point, and I think that was in the year where he appointed no female silk. He actually went public and said, well I’d like to, but there was no one that was eligible.
That’s the problem. I just don’t know what the solution to it is.
I can only speculate that one of the reasons, and it may not be the only one, is that practice at the Bar is not at all family friendly.
Well it’s not.
And women do tend to be primary caregivers. Now obviously that hasn’t held back a number of women, yourself included, although you went straight from a solicitor’s practice to the bench.
I didn’t have any children either, so that’s the other thing. It makes it easier.
For a lot of women it probably means making some very difficult choices.
That’s the dilemma I think. I really do think that is the problem.
Whether it should be the case or not, where there are children, women tend to be the primary caregivers.
Geraldine Davidson’s got children, she’s done it, but neither Ann Vonstone nor Trish Kelly in the Supreme Court have. Lindy Powell is an obvious person that took silk, who has got children.
Although Lindy is a one-off isn’t she.
Well, you could say that for sure. I think the real dilemma is you’ve got to have some pretty good support systems in place to be able to do both. And at the Bar, once the case is on, it’s on - you can’t just take time off in the middle of a trial because your child is sick, or it’s school holidays.
And sometimes when the case is on, you will be working 15-16 hour days, seven days a week. Where does that leave your kids, particularly if you’ve got young children.
It’s still a problem with being a judge, you’ve got to work some very long hours.
Yes. When you look back on your career, you must think well fate in a way has been very kind to you, because coming from a very core background, probably my observation would be that you had two very fortunate endowments, and one was supportive parents and the other was intellect. But not much else.
That’s right. No money. I was so lucky because I did have that background. My parents could easily have been different, but there they were and they were obviously very strong personalities both of them. I always remember I used to be terrified when I was at school that if I failed I’d get into trouble from my parents. When I look back that was ridiculous, because I realised they would have been supportive of whatever I did. I realised that later that I was [unclear]. Of course they were giving up a lot for me, so I had to knuckle down and work hard, I couldn’t just slack off.
And then fate has put me in touch with a lot of interesting people. I was doing Roman Law with John Bray and as I said ended up with my job, I meet Pam Cleland who gives me a job, doing my family law with Roma Mitchell, who then becomes a friend. And we travelled a lot together later and we were very close friends. She was a great mentor to me, and I ended up in her old chambers and I had her picture up on the wall. The thing which was unusual, and I don’t think it had ever happened before, is that when I presented at my commission in the Supreme Court, she was then the Governor of the state. Len King invited her to sit on the Bench for the presentation of my commission, which is an unusual thing to do, but she had been a judge of the court. So she actually sat on the Bench (in civvies).
I was going to say you could make a joke about the separation of powers. But what is the state government, they’re not legislature, executive of judiciary are they?
I’m not sure really.
Well they might be part of the executive.
That’s the other funny thing that happened with Roma - in those days a judge had to be sworn in by the Governor in Executive Council, so I had to go to the Executive Council meeting which was over at the Treasury building, you know the Reserve Bank Building in Victoria Square. The other thing which I haven’t mentioned of course, is that the timing of my appointment to the Supreme Court, coincided with the whole gender bias issue, the problem had arisen with Derek Bollen’s unfortunate remarks about a rape case, the phrase “rougher than usual handling” and all the rest of it.
You might just expand on that a little bit, because I know exactly what you are talking about. But future readers –
We are talking about a time when social concepts were changing, and there were issues were coming up about the fact that you had judges who did not understand what I call gender issues. In South Australia, (it came up in other states as well), but there’d been an issue when Derek Bollen who was then a Supreme Court Judge, heard a rape case, and it was a case of rape in marriage, her husband charged with raping his wife. As part of his direction to the jury, Derek had referred to the fact that it was just “rougher than usual handling”, there was nothing really problematic about all of this, which of course led to an outcry about the treatment of women, and the need for male judiciary have a better education and understanding about feminist issues. It was a big issue at the time. I think it was very unfair to Derek Bollen I might add, because I think part of that direction related to the state of the Law as it was. Anyway, that’s another issue.
I went over to the meeting at the Executive Council, and I was sworn in by the Dame. Then she said to me, ‘look the media are outside and wanting to do an interview with you’. I said ‘I don't want to do the interview with them’, and she said ‘well I think you should’, and I said ‘I don’t want to’. We had this little altercation where she kept saying ‘I think you have to’, and I said ‘I don’t want to’. Eventually she said ‘well you’d better get it over and done with’. I then said to her, ‘oh they’re just going to ask me about gender bias’, and she said ‘well you still better do it’. So I got outside, and the first thing they asked me was about gender bias and all the rest of it. I remember saying, ‘well I think you’ve got a lot to answer for, because some of the things you are saying have been unfair and misreported’. I guess it has been an uneasy relationship with the media throughout my judicial career, but there it was. The government was very keen to put a female on the bench of course, to overcome some of this perceived bias.
But of course you wouldn’t disagree with the proposition that in your role as superior court judge, it’s not incumbent upon you to have a good relationship with the media?
No, on the contrary. Well on the contrary is pretty unfair. Getting back to being in Roma’s chambers with her picture, the thing that I was very conscious of was that you had to have the strength of your own convictions, beliefs and opinions. Being a judge is not a popularity contest, and you do have this problem about the media running campaigns about cases, without necessarily knowing all the facts, or when you’re having to make a decision which might not be one that you really emotionally want to make. But as a judge you have to apply the law and not emotion. That can lead to a very awkward relationship with the media. I know as Roma did, you’ve just got to stick to your own beliefs, because otherwise you’re not doing your job.
The media can be very quick to misconstrue.
And they don’t bother to read the full sentencing remarks. But just to reflect on the conclusion.
When you were appointed a judge, you took a judicial oath.
During the course of your career as a judge, did you ever reflect on that oath, was it something that you ever thought about?
I don’t think so. I’d like to think that was just inherent in my psyche if you like.
Yes, without fear or favour.
That is what you are there for. That’s why I say it’s not a popularity contest, you’ve got to do what you believe is the correct thing regardless of how unpopular or whatever. If you are doing a lot of criminal cases and hearing a lot of really awful victim impact statements and what have you, I have often been in court reflecting that if this had happened to my father/mother/child or what have you, well hanging would not really good enough, or flogging, you know. I understand that emotion. And that’s the problem about being a judge That you’ve got to get through that, you’ve got to take into account the impact on people, and you can understand those emotions. But you can’t let that influence a decision according to law, that’s the key.
I suppose one of the things that you would reflect on as you regularly sat on the Full Court hearing criminal appeals, as a trial judge you have to think that this could be the subject of an appeal, how would I consider this on appeal?
I never really thought about it that way. I always thought that you’ve got to do the thing as you should. The advantage about the Appeal Court is that if you’ve stuffed it all up, it can be put right. One of the problems I have about appeal courts to be quite frank, is that, and this is an argument about whether you have a specialist appeal court as opposed to what we have at the moment anyway is the mixture. I think there’s an advantage in being an appeals court judge if you’ve done trial work, because you have an understanding of what's really been happening with a trial much more than just looking at stuff, black and white on the screen or pieces of paper and what have you, you have an understanding of judges doing things on the run, and also having some understanding of what the case might be about. In a lot of cases which come up on appeal, the arguments on appeal actually almost have no relationship to what the trial was about, which is one of the problems about it.
They can also be very confined too. What about the fact that there is no separate Appeal Court, and the Full Court is actually just made up of any combination of three judges - that you’re actually reflecting on the work of the people that you are professionally closest to, and probably some of them you socialise with, and through a large extent you are isolated from the rest of the legal community – how do you feel about making sometimes harsh judgements about these people that you are working with?
Well you try not to sound too harsh. The funny thing about that is that I can remember meeting some magistrates, some of whom were very resentful about some of the judgements that have come out of the Supreme Court, about their decisions. I used to say ‘but we are much nastier to each other than we are to anyone else’. It’s a funny thing, it must be the way your psyche is, because in the Supreme Court you were often sitting on judgement against each other, and there might have been a few tensions. Overall you just take it in your stride. You might say ‘I don’t agree with that’, or ‘what’s he on about’ or something, but you know that was part of the deal, that’s the way it is.
Yes. There must have been a number of occasions when you would have seen yourself effectively having the deciding vote, because the judgement would have come out one way in the first instance, and you’d be on an appeal court of three, and at a fairly early stage you might be aware that one judge supported the trial judge and one judge did come the other way, and they might have been waiting on you. Did that ever happen?
No. Partly because one of my skills was that I was a great mediator, so I did a lot of work with my fellow judges. to try and work out a fair result on appeal, so I didn’t write a lot of independent judgements If you get to consensus, I felt it doesn’t help to dilute a judgement by writing something separately. Everyone is helped best, other judges and the legal profession, by a judgement which comes out which has a very clear direction in it. Most of the time you can usually work your way through the issues. I didn’t ever have a real problem about any of that, that I can particularly recall.
So in cases on appeal where you supported one of your fellow judges – I think what you are saying is there was a contribution from you in that judgement.
It’s just that it was written by another judge.
When I first went to the Supreme Court, joint judgements didn’t really exist. You’d come out of Court and if the result was agreed one judge would be allocated to do the judgement, and then you will either agree or disagree. Joint judgements were a rarity under King C J.
One of the first joint judgments I think when I was again sitting with Bruce Debelle in a workers’ comp matter. We had this matter come up, and it must have been the same Full Court as the other case mediator, because Bob Mohr was the other judge in it I remember. The appeal had been listed in February and wasn’t reached and it was relisted in March. Then between the two listings, the government legislated retrospectively, or the argument was that it was retrospective and took away the rights of the appellant. When we got into Court, Bruce and I thought that was pretty unfair, but Bob said ‘it’s retrospective and it’s all there is to it’. If you’ve known Bob you know that’s exactly how it would be. In the end Bruce said to me, ‘look I think I can find a way around it’. And I said, ‘well Bruce if you can, I’ll agree with you.’ But it meant if by finding a way around it, there had to be some sums and things done, the calculations and workers’ comp and what have you, so I said ‘well I’ll do that bit and you do the other’. We put it together, and did a joint judgment and then Bruce said to me, something to the effect that people could think we were idealists and I said ‘well as long as people thing we’re fair, that’s alright’. The judgement was delivered, and it was a one-off, it was not going to be a precedent for anything, but there it was. So that was a joint judgement. Subsequently I worked on a lot of joint judgements with judges, because particularly in a big case it’s an easier way to do it, because you can divide parts of it up.
If you agree on the same result and you agree on the methodology, why wouldn’t you divide up the work.
You can divide up doing the facts and the likes. I used to do quite a few judgements with Tom Gray because I’m very good factually, but Tom is very good on the law. It’s a work thing, it saves time if you can do it that way. Obviously if you have a very strong view about the result, then you don’t do that.
Even if you don’t agree, it’s not unusual in a Full Court decision for one judge to set out the facts.
A question about workload - has it changed over time, is it crushing, can it be controlled?
It’s very hard to control it. I think it might be very difficult at the moment, because I think they are short of judges and they’ve got very heavy workloads. Some of it can be controlled, but the criminal work - which as you know I did a lot of - is very hard to control. The difficulty about it if you are doing jury trials, you’ve got to be ready to sum up to a jury the minute the evidence finishes, and you’re never quite sure when that’s going to be, so you have to keep on top of that. The last jury trial I did just about, finished a couple of counsel off who retired after it. I think we went for about ten weeks, and I was working seven days a week and all day, and I remember sitting at home on a nice Sunday afternoon working, thinking I’m sick of all this.
Couldn’t even go to your football match?
It was post-football season that was alright.
So you reached the mandatory retiring age?
So you had no choice. If you hadn’t had to retire at aged 70 would you have gone on?
I probably would have. It might sound a bit corny, but it was also partly sense of duty. I think again the Dame Roma influence. I could have retired on a full pension when I turned 60 because I was appointed to the Bench when I was 45. But there is that sense of that, you’ve made a commitment of an appointment and you should serve it out, health permitting of course. So I would have stayed on longer. On the other hand I think that in one sense I was getting to the stage where I was getting pretty tired, because I’d been doing some big cases and things, and it was very difficult at times. I’d been doing it for a long time. I was there for what 25 years, 26 years.
A long time. And 70 is not an unreasonable retirement age.
I don’t think so, no.
Although some judges, and I think just from speaking to him, might include Bruce Debelle in this, felt quite cheated that he couldn’t keep going. You could say that at least for some people, they’re still at the height of their intellectual powers and they’re full of energy, it’s a shame in a way.
It is, but I must say, speaking personally, having retired I’m not short of things to do. I am so busy. In a way what’s nice about it is that I’ve got a chance to do things that I couldn’t do before. I wouldn’t even have been able to go to the [Margaret Nyland] long lunch before because I’ve always been in Court.
In Law being in that situation it’s very demanding, and I’m keeping very busy since I have retired. I have had a lot of speaking engagements which is probably not surprising. I have talked with all sorts of interest groups, doing a few school visits, legal studies groups and what have you.
I’ve been doing a lot of work at the moment at the university law school - it’s taking up a fair bit of my time actually – a couple of years ago John Williams who is the Dean, approached me about some of the law students getting into financial difficulty, not being able to pay their rent and things, not through any fault of their own, and whether we should set up an emergency assistance type of fund. I thought that was a good idea. We set it up fairly informally, and then it became quite clear that the need was greater than we had anticipated, so we had to put it in a more formal basis. We set it up, and I became the Chair of that. I’ve been attacking people in the street, writing letters and doing everything I can to get as much money as I can to build up this fund. It’s taken up quite a lot of time, but it’s been very rewarding, because of, again, going back to helping some of these young students. Some of the stories that we hear they’re just appalling, these kids getting into difficulties.
I’ve been going down to the law school a bit, and I had morning tea with some of the indigenous students. When I say I’ve been doing this work with the law school, people immediately think of lecturing, but we’ve got plenty of lecturers down there, it’s really more the one-to-one stuff.
As you know I’ve also been coming to the Law Society, because I’m on the young lawyers support group, because I thought that was a very important role.
And also a bit of the football stuff, and I’m patron of the Adelaide High School Old Scholars.
So what you are saying to me is you wouldn’t have time for a regular job anymore now anyway?
No well that’s the joke of it is that the Chief Justice contacted me recently, because he noticed that I wasn’t on the auxillary judges list, and he said he thought perhaps I said I didn’t want to be on it, and I said ‘well no one ever asked me’. He said ‘do you want to be on it?’ and I said ‘I’m happy to be on it, but I don’t want to do any work’. And he said okay. And then he said ‘in that case I suppose you’re not interested in doing a ten week trial by judge alone bikie case in the District Court’, and I said ‘that’d be right, I’m not interested’. He said ‘well if we find anything for you to do that will short and interesting’, and I said ‘that’s fine by me, not to worry’.
Actually when I was at the Law Society on that last occasion, Chief Judge Muecke said ‘I hear you’re not interested in doing the case’ and I said ‘yes that’s right’. The other thing which has actually taken up some time is that I have been consulted by some of the forensic mental health people, because one of the things that I did a lot of work in was in the Supreme Court in that area with the release of people on licence and things, and there seem to have been a bit of a breakdown between the Courts and the medical profession in that respect, which needs to be resolved. I was consulted about it, so I’ve been doing a bit about that and getting everyone together, which is a good thing to do.
Yes. Would it be fair to say that one of the roles at which you have shined, has been taking up causes where there needs to be pragmatism and common sense, and communicating with people who need to be spoken to in plain language?
I think so. One of my associates who is now practicing law in a firm commented one day ‘you know how you always say you’ve got to be practical about things’, and I said ‘well I don’t think I ever said that’. And he said ‘you say it all the time’, and I said ‘I’m sure I never say that’. Apparently I do. I say you’ve got to be practical about it. I think I have got a very practical approach to things. Part of my upbringing and background, I think it has made it much easier for me to communicate with a lot of people, not just in the criminal jurisdiction but at all sorts of levels with people that might not be so easy if I had a different background.
You might reflect on the fact that to be practical and to be a good communicator, if you are both, you wouldn’t see it as a particular skill, it’s just the way you are. But other people see it as a skill.
Well I suppose that’s the fact. I don’t remember myself, but I think I must say that all the time.
On the other hand you probably have never viewed yourself as an academic.
No not at all.
And there’s probably room for both on a superior court.
Absolutely. That raises the whole issue about when you get back to appointing silks, there’s probably some academics that should be appointed. It hasn’t really happened here has it?
It has on the Federal Court but the Federal Court tends to be largely an appeal court. Well that’s not true – commercial court, appeal court. But it doesn’t do any criminal trials. In fact Kevin Duggan was telling me that he’s actually been providing some assistance to the Federal Court in case they had to do criminal trials for cartel prosecutions because a lot of the judges there just had no experience in that at all.
And communication is a bit of the key with a jury trial. I remember Dame Roma, one of the things she said to me, probably going back to the District Court appointment, she said ‘one of the things that you will find, you will love working with juries’. I thought it seemed a funny thing to say. And I do, I love it working with juries. I still marvel at this extraordinary system where you get 12 people brought together, who are not lawyers, and have to take on these issues. I’ve had probably a couple of silly juries over the years, but not many, and I think probably only a couple of results that I didn’t agree with and they were acquittals, not convictions. Jurors take their role very seriously, and it’s very rewarding to be able to established of communication, and it’s not easy because in a courtroom setting you’re not in a lounge room.
A courtroom setting is quite intimidating for people that aren’t used to it. Did you see it as part of your role to put jurors at their ease, so to speak?
Oh absolutely. You’ve got to do everything you can to make them feel comfortable, and feel that they can raise issues with you - hopefully they don’t, but if they have a problem. I think that’s an important thing to do.
You’re obviously a strong supporter of the jury system?
I am. I have done a few trials with judge alone and as a judge you’d be a real supporter of the jury system. No, I think it’s fantastic. As I said with that last jury trial I did, I had five defendants, it was a monster of a case, with senior and junior counsel for everybody, and so a lot of lawyers in court, and a lot of evidence. It involved 5 young men charged with killing a Sudanese man, and we had a lot of Sudanese witnesses. On one occasion I had to put the divider up between the dock and the witness box, (which you usually put up to protect the witness, and in this particular occasion I put it up to protect the defendants from the witness who threatened to kill them all. It was a very complicated case. When the first verdict was returned there was screaming and carrying on in the courtroom. I had a very good Associate mind you, and with her help the Jury they just ploughed on and delivered the verdicts. You never know what the situation is in the juror room, but the Sheriff’s officer said that one of them was apparently quite a skilled artist, and had drawn pictures of everybody. She also said the other thing was given the five defendants, complicated issues, really complicated issues, joint enterprise, an area of the law which I don’t think anyone really understands it let alone judges. Anyway they had their notebooks indexed and cross-referenced and all the rest of it. These were people who were working really hard on a lot of very difficult issues. It’s pretty impressive stuff.
They took their responsibilities very seriously?
Just for the record, what was the name of that case?
Well the name of the case is R v B, because, it’s actually called Bacon, but four of the defendants were youths, so the name’s is suppressed. They just refused leave from the High Court about two weeks ago, or three weeks ago, in one of the appeals.
So it’s finished now?
Have I made any shocking omissions, is there anything that you’d like to mention?
The only thing I perhaps should mention is about the role of women in the Law. I was talking earlier about the occasion in the Police Court when they wanted an order to remove all women from the Court. The significance of that occurred to me much later. One of my fairly big cases that I did a couple of years ago required me to preside a trial of a man charged with several counts of endangering life. The charge were based on the fact that he’d had unprotected anal sex with a series of young men, as a result of which they were infected with the HIV virus. It was a case very much concerned with homosexual acts between men, and some quite graphic evidence relating to that. The point being that on this occasion I was hearing the case, my Associate was female, senior counsel for the prosecution and defence were both women, and most of the jury were women. I thought, well it’s sort of almost a reversal of times you know, if a woman had been giving evidence in court back in the early days, there wouldn’t have been any women in court at all.
I’ve always had the view that the men who have behaved in the most chivalrous manner towards women, in terms of politeness, always opening the door for them, tend to have the most condescending attitude towards women. It may be that the two go hand in hand, and that the conventional politeness is actually disguised condescension.
It could be, I don’t know. It’s just that things have been changing over the years and I think that was a good example.
You’ve actually had a career where the most dramatic changes have occurred, because there was no technology when you started. I mean manual typewriters, no such thing as computers.
And if you wanted to make an interstate phone call, you had to book it.
You started in an era where women were barely tolerated.
Yes, and I did law in that period when there were very few women around, which of course meant that when it came to appointing women to the Bench, there weren’t that many women to appoint, so the pool was very small. I suppose in a sense you could say I was a bit lucky in that respect.
You’re the big fish in a small pond.
That’s right. Absolutely.
If I may say so, you have acquitted yourself very well in your judicial career and left the Bench held in very high regard.
I think I found it satisfying. I’m not joking when I said the appointment was terrifying. I thought I’m never going to be able to do this, how am I going to cope. It really was hard to start with, but you settle into the things. I had some very good support around me and help from my brothers on the bench and my later sisters of course. The other thing I should just mention just because it is significant, was that there was an important occasion, the date which I now can’t remember, where I was able to preside on an all female Bench in the Court of Criminal Appeal. That was the only time it’s ever happened in South Australia. It happened in New South Wales I think once. That was a big event. It was a pity that Dame Roma wasn’t alive to see it, because it could never have happened in her day.
Yes, even she would have probably regarded that as extraordinary.
Yes. I felt a bit sorry for the appellant who was a man, charged with some sexual offence. I can’t remember much about the case except that he lost.
No doubt because he deserved to lose.
He deserved to, absolutely. It was a very fair Bench.
Well thank you very much indeed. We will close the interview.