ORAL HISTORIES INTERVIEW
Lindy Powell QC
By Elisa Holmes on 9 August 2014
This is Elisa Holmes interviewing Lindy Powell. Lindy, you were born in 1952 is that right?
And what’s the date?
30th of March.
Yes in Adelaide, I was raised here, educated here and I’ve worked here all my life. It’s fairly pedestrian.
That’s one way to put it. Let’s talk about Sandy and June, your parents, for a moment. Sandy was an accountant?
He was an accountant who studied accountancy courtesy of those schemes after the Second World War. He came from a Welsh coal mining background and so that was a real opportunity for him.
My mother was a fifth generation South Australian who met Sandy during the war in the Army. It was like two sides of the coin really. My mother never worked a day in her life. She was a very nice woman.
Did you go to Walford right from the start of schooling?
Yes I did. I started school when I was four and went through til year 12.
Is it true that you failed maths at school?
Yes I did. In matriculation I did English, Latin, French and Modern History - you had to do six subjects in those days and they made me do Maths 1 and Maths 2 because they thought it would be good discipline for me. I thought I was very good at Maths 1 and 2. I came out of the exam, while everybody else was in tears, thinking it was a walkover. It showed how little I knew about Maths 1 and 2. I failed both of them which actually meant that I didn’t matriculate.
How did you manage to get into law school?
In those days there were Commonwealth Scholarships for University and they gave you a Commonwealth Scholarship on your best five subjects. Four A’s and an F were good enough to get me a Commonwealth Scholarship. I was only 16 at the time and in those days, I don’t know whether it’s still so, but in those days under the University of Adelaide Act you had to make application to go to University under 17. But I thought that if I made application, they’d see that I hadn’t matriculated and they’d send me back to do biology or something like that - they probably still would if they read this. So I just went to University anyway, I thought that was best.
So you were 16 when you started at University?
Did you just do Law or did you do an Arts degree first?
No, you didn’t have to do another degree. I did first year Latin because I liked Latin. I don’t know why I liked Latin but I did. But that was just for a bit of fun.
At what point did you decide that you wanted to go to law school?
Well in those days with the sort of matriculation, or non matriculation that I had, it was really a question of doing a bachelor of Arts and going teaching or doing Law. There weren’t journalism degrees or media degrees and all those interesting sorts of degrees. I didn’t really fancy being a teacher, although I think looking back I would have quite liked it. So I did law. It was one of those things where if you debated at school and you were a bit argumentative, everybody said “well you should be a lawyer”, so I thought ‘I’ll be a lawyer’ but it wasn’t as if I had any family background in law or anything like that.
So off you went at the age of 16. Let’s talk about law school for a moment. You’re most famous I think around the traps in respect of your law school years for your performances in the law revues.
Yes I spent a lot of time in law revues and Footlights revues and all sorts of revues. In fact I think probably I spent more time doing that than studying law. Really I think I was just so young that I didn’t get what I should have got out of my law degree. I would love to go back and do it all over again. There were parts of it that I really loved; I really loved jurisprudence and I was fortunate enough that Professor Finiss was back for a year sabbatical from Oxford and he taught me jurisprudence. He was a fabulous teacher and I loved jurisprudence. I loved constitutional law but I can’t say that contract or mercantile law, as we used to call company law back in those days, actually fascinated me.
Who else were you at law school with?
It was an interesting year because I would say it was the first one with, what I would call, a large intake of women. By large I mean that the intake was about 100, it might have been a little bit more, and I think there were about 20 women. That was a large intake. Before my year in ’69 there were perhaps three or four or five women.
Was that a deliberate policy can you remember or was it just that more women were applying?
Yes it just happened at that point in time. There wasn’t any affirmative action or anything like that. It just happened that there were more women. I went through with people like Maureen Pyke who’s a Family Silk now, with Penny Goode who’s a Judge in NSW now. There were a lot of women who went on in the law - Susie Biggs who is a partner at Clelands. There was a comradery of women. Helen Parsons who’s a Judge of the Industrial Court. There were a group of us who were the first real female push I’d say in the law school. In addition to that there was Paul Rofe who wasn’t actually our age but he’d started medicine and didn’t like that so he started a law degree and became one of our group. It was a good group.
And that was between about 1969 and 1973.
It was quite busy really. There were revues to do. It was right at the peak of the Vietnam War demonstrations. There was a lot of demonstrating to do. It was quite busy. I remember one particular day that it was very busy because there was a Vietnam moratorium in the day and then we all had to go and blow whistles at the Norwood oval at the match of Australia with the Spring Boks. So it was a very busy time . It’s good to be joking about these things because then we took them very seriously. Rightly so, at the time.
During this time at law school were you always intent on being a Barrister or did that come later?
I think I always did look to the Court work with a woman called Andrea Stain, who didn’t go on to practise law, but I think she and I were the first all female mooting team at Law School and we very much enjoyed it. I loved mooting. So I think that even back at Law School I had the urge to be a Barrister.
What did you do immediately following law school?
Well, the Commonwealth Scholarship only paid for your first degree and I actually wanted to change half way through and go and study English. My father said to me that if I finished my law degree he would pay for me to do any degree that I wanted to but I had to finish what I started. So I finished my law degree in the minimum four years and then I said “well I’m off to do Arts now”. He said “no that’s not finishing” and I said “what do you mean that’s not finishing?” and he said “you have to get admitted to the Bar” which I thought was a rotten con. So that meant I went and did Articles.
And where did you do Articles?
I did my articles with John Perry at Kelly & Co. That’s when I really fell in love with the law for the first time. It was when I came to do it practically that I became absolutely enthralled by it.
So your year of articles with John Perry at Kelly & Co. - was that largely spent working on commercial matters?
It was a mixture because John Sulan was at Kelly & Co. at the time and he had a very large criminal practice. So I’d be off going to the Adelaide jail proofing his clients and off to the Magistrates Court doing committals for him because committals still existed. And of course Kelly & Co. had a large insurance practice at that time so often if there was a large personal injury claim then I’d be sent down to the Magistrates Court on traffic sort of matters to test out what the witness was like and what they were going to be like in the big personal injury claim. I had lots of opportunity for Court work and I was encouraged to sit in on big matters in the Supreme Court when John’s criminal trials came up and I’d done the committal. When Perry had commercial matters he’d take me into Court. He was an impeccable principal and despite the fact that I had this great time with John Sulan running around doing the criminal work, he would set me at least three pleading matters per week. He’d give me the files and I had to meet him at 8 o’clock every Monday morning with my pleadings. He’d sit there with his red pencil and correct my pleadings. There were a lot of corrections. I didn’t find it terribly exciting but I think it taught me something about pleading.
It’s funny how as a young person the criminal law is always more attractive. I remember in my year reading for you and Tom Gray, poor Tom didn’t really see much of me and had a very hard time keeping me away from your murder trials and assault trials. They seemed much more exciting. So even in the early days it sounds like you were particularly attracted to the Criminal Law. Was it the advocacy that particularly attracted you?
I don’t know that I can put the things that attracted me in order. It was the advocacy obviously but it was also the human component of the Criminal Law which has always fascinated me. The fact that every case is so peculiar to its own facts, every individual has a life story to tell, every situation is always unique. People charged with criminal offences have to let you into their lives so intimately for you to be able to defend them that you learn so much about them and people generally. That is a real privilege. I’ve done commercial work and obviously every transaction has its own uniqueness too, but worrying about money does not involve you in the same way that you become involved with your clients charged with crime.
It is an entirely different experience in that respect. So were you at Kelly & Co. only for your Articles year?
Only for my Articles year.
And then what did you do?
Toward the end of my Articles I was offered an associateship with Dame Roma Mitchell and I took it with a great deal of alacrity.
Tell me a bit more about that year.
Well that was a terrific year but I think associateships should be limited to 12 months. I think there is a certain amount of skills and knowledge that you can get out of being an Associate and I think you should be able to do that in 12 months and then get on with doing something else and give someone else a turn at being an Associate. I don’t approve of longer than 12 month associateships.
She was like John Perry. She was an immaculate teacher. She was a wonderful person. I got on terribly well with her and we ended up being very good friends over the years. She would always talk to me when we came out of Court and tell me whether it was a good cross examination, a bad cross examination, why she thought that was so. As the year wore on she’d ask me what I thought about the case. She would get me to draft her summings-up and Judgements - they very often didn’t end up the way that I’d drafted them. Some of the Judgements ended up contrary to how I thought they should have been decided. But she involved herself with me as her Associate in a very intimate way.
Dame Roma of course is well known for being a pioneer as the first female QC and Judge of the Supreme Court in Australia. At that stage of your career when you were Dame Roma’s Associate, were you conscious of being a woman and the fact there were fewer women in the profession?
I was very much so. Towards the end of my associateship I was looking for work in the profession. Dame Roma very much encouraged me to go into matrimonial law. It was still the Matrimonial Causes Act in those days. In fact she more than encouraged me, she positively set out to find me a job in what she considered to be the best matrimonial firms in Adelaide.
Is that because she thought you would be particularly good at that or did she think that was the best way for you to get ahead at the time?
She was very conscious of the fact that I wanted to be an advocate and I think she was looking forward in my career path, comparing it with her own. What she counselled me was that if I went into matrimonial law, that would give me an opportunity to get on my feet in Court much earlier than I would in any other area. I think she foresaw or she predicted that I could do what she did, which was to make her name as a very good matrimonial lawyer and from there, expand into other work which is of course what she did.
It’s interesting that that was an issue back then. It’s still an issue for young people going to the Bar today. Especially in litigation firms, for a woman trying to get on her feet as a commercial lawyer is notoriously difficult. It’s interesting to me that that was an issue back then.
I think it’s interesting that in those days when I was her Associate, Dame Roma was very opposed to affirmative action. I know that in subsequent years she revised her opinion about that and actually became a proponent of affirmative action. That’s the sort of woman that she was. She would think about things and modify her views after she reconsidered them.
I wonder why that was? Do you think it’s because over the years she saw that things weren’t moving as quickly as expected in terms of the number of women at the Bar?
I think she saw more and more very talented women not moving ahead at the speed that she had anticipated that they would.
I think it’s very interesting that someone like Dame Roma who, when I was working for her as her Associate, was very strongly of the view that if you work hard and if you’re good enough you’ll get there. She’d done that and thought that everybody could do the same. She realised that it wasn’t that easy and you can be very talented and you can be very fortunate but also you can be very talented and not be fortunate.
I want to talk a bit more about – and we have talked about this often - the importance of a role model in all aspects of life but particularly the aspect of professional life. I think that’s not just so for women. One of the important things when I think back at the early stage of my career, was that I was never conscious of there being a big issue for women. I think that was mainly because I had you as a mentor who had achieved success. I think I took a lot for granted as a junior lawyer because you’d done it and there hadn’t, at least ostensibly, been a massive problem for you on account of the fact that you were a woman.
Was it important looking back on your career that you had Dame Roma who had achieved all of that?
Yes it was very important. Maybe it was because of her views at the time but I think what was important was that she didn’t talk about the disadvantages of being a woman. In the same way, you and I didn’t talk about it. We got on with it. There’s something which I have observed over the years and I observe more recently. That is that men resent women who talk about it. There is nothing that makes male lawyers eyes glaze over than women who start talking about how hard it is for women. I’m sure that the way they see it is that we are just making excuses for lifestyle decisions. In the same way, I glaze over when men start taking about having to cut conferences or meetings short for their child-caring duties.
So I think I’ve always, and I’m sure that you have too, we always subscribe to the theory of ‘just get on and do it’ and don’t bleat. Now that’s no reason why there should not be some communal bleating, if you like, or some thinking and considering about how this problem of the lack of promotion of women or the lack of utilisation of women’s talents should be addressed.
So at the end of your year with Dame Roma, you went to Johnston Withers?
Yes. Jack Lewis went to the Magistracy and I was offered a position there to take over his files. That was a great opportunity because Johnston Withers was a very busy litigious practice. There was an element of Family Law there, or Matrimonial Law, but there was also Criminal Law, there was Industrial Law, Workers Compensation, Personal Injury, small commercial matters; it was a very broad ranging general practice.
You would have had to hit the ground running by the sounds of it. Did you spend a lot of time on your feet in court right from the outset?
I did and this is where it’s interesting. I think very few women except for of course Robyn Layton, who was a partner of the firm, had the same experience as me. Elliott Johnston was an enormous encourager of women. You’re very fortunate if you get into a practice young with a senior partner in a firm who positively encourages women.
Especially in those days.
In those days particularly. I can remember we had a client, I don’t think it exists anymore, called the Moulders Union. These were the days when there were a lot of small unions before amalgamations and mega unions. Everybody at Johnston’s had their own union or unions to look after. Elliott decided that I should look after the Moulders. They were a union of very brave men working in foundries with red hot metal all the time - moulders don’t whinge and had very stoical attitudes. When Elliott told the secretary of the Moulders Union that I was going to take over their work, they were very opposed to that. They didn’t want a woman. But, with Elliott’s help and encouragement, we persevered. We ended up getting on wonderfully. They became very attached to me to the extent that when I asked them if they could find a mould for me of a little Victorian three tiered fountain for my front garden, they were most excited when they found the mould of the Victoria Square fountain down at the Islington Railway yards. They asked me which bit of the Victoria Square fountain I’d like in my back garden.
I hope you had a very large back garden?
Well I think there might have been a copyright issue, but I also think that the mould would have cost me a small fortune as well.
Tell me a bit more of the culture at Johnston Withers back then and especially the influence of Elliott?
I think the best way to describe the culture was that it was very much an encouragement to do what you considered was right and what was fair. There was minimal consciousness of cost and profit. For example if you’d come back from a Magistrates trial and you’d lost, Elliott would sit down with you and say “do you think that was the right result?”. If you told him that you didn’t think it was, he’d say “well you appeal it.” And you’d say “but the client has no money” and Elliott would say “you do it anyway.” That’s an example of how we didn’t have our eye over our shoulder to costs; we didn’t time cost, we never charged clients solicitor/client costs in Civil matters over and above what we were paid in costs from an insurer. If we lost we never charged our clients, we carried their disbursements for them. It was a totally different culture altogether.
It’s in stark contrast to the -- I was going to say stereotypical but I think the culture of most law firms but particularly commercial firms these days. Ultimately lawyers are driven by the need either to bill a certain number of hours or to make a certain amount of money. Whereas it sounds to me like you were there to be lawyers.
That was the beauty of it, you devoted all of your time to being a lawyer. Of course Elliott was quite a lot older and a lot senior. He was a Silk when I went there. He often got work from other firms even though he was within a firm. Obviously he made a lot more money than we did. We’d have a partners meeting at the end of every year and Elliot would say “well Lindy did a lot of Legal Aid work this year and that’s very important so she didn’t make as much money as you Brian who was doing all the workers comp solicitors work. So Lindy can have a bit more”. Usually it came from Elliott’s profits but often there would be other redistributions. We’d divvy up the profits of the firm according to Elliott’s standard of fairness and nobody worried about who made more money than anybody else.
So you’d spoken about Brian and Robyn earlier on in the context of Johnston Withers and we’ll talk a bit more about them, but also who else was around at Johnston Withers at the time?
Carmel Kerrin came after me and Paul Heywood-Smith came just after me; Peter McCusker of course was there when I started.
And was Robyn Layton there at the same time as you?
Robyn was. She was there I think for about maybe two years and then she was appointed to the Industrial Court Bench. She was appointed very early. I think she was only just 30 when she was appointed to the Industrial Court Bench, so she was only with the partnership when I was there for a relatively short time but it was a very cohesive group and we were all motivated by the same sort of social justice issues. We had an enormous lot of goodwill in the profession. We felt very proud of the work that we were doing. You know, I reflect on it and I think about what we did, never charging solicitor/client costs and carrying our client’s costs as we went along. I wonder whether that meant that in doing an enormous number of cases, perhaps we did not devote ourselves in a terribly focused way to maximise our clients awards. There’s a tension between being everything for everybody and being the best for an individual.
Listening to you speak about that, you must have come out of those years with such an enthusiasm for the law. It wasn’t a job where you went there to make money, to progress and with the goal that “I want to be a senior associate and I want to be a partner to make more money”. It sounds to me more like an atmosphere that I guess I was lucky enough to experience while working for you and Tom Gray in Bar Chambers. It sounds like it must have developed in you such an enthusiasm and passion for the law that most young people starting out just don’t get. If you’re clever these days, you go to a big commercial firm and you get on the ladder and you become very blinkered.
Very focused on your own promotion. That was never an issue with Elliott. I mean I’d been there for a year and he made me a partner. Paul Heyward-Smith had been there for a year and he was made a partner. There was just no issue that we wouldn’t all be working together equally and there were no personal glittering prizes to aspire to because we were there and we were partners and we had a full voice in the partnership. There was no “if I work harder I’ll be rewarded more”. You worked hard because you loved it, and you were rewarded.
Were there ever any people who got a job at Johnston Withers and it turned out not to be the place for them? It sounds like there was a very distinct culture and it was a very distinct kind of place. Or was Elliott just very good at choosing the right people?
No, there were people who came and went. Usually they chose to go because it wasn’t their scene.
How many years were you at Johnston Withers?
I’m trying to think, I was there from ’74 until ’87. So quite a long time.
I suppose, for you, there was no reason to move on in a hurry because you were doing a wide range of work, you were appearing in Court and being an advocate.
I loved it and I loved my firm. It was very sad when Elliott left and went to the Bench. Things were changing. I think Johnston Withers after Elliott left was rather propelled kicking and screaming more into the culture of other law firms. Time costing was introduced. I remember Brian Withers saying to me “do you realise Lindy in the last three months you’ve done four hours of billable work?” I just hated keeping time sheets and would not do it. We started charging solicitor/client costs which I never liked. All those sorts of things happened which realistically perhaps had to happen to make a firm appropriately profitable and competitive with other legal firms, but things which were in my mind, radical changes.
Is it that sort of change that led you in 1987 to move to the Legal Services Commission?
It was that. It was also the fact that by 1987 I had two small children. I was obviously passionate about Legal Aid but I must admit I was to an extent self-motivated. I thought I could go and be the Director of the Legal Aid Commission and it wouldn’t involve me working every weekend and every night. It would be a salaried position where I would not have to devote so much of my time. I turned out to be radically wrong. What happened was that for the first month that I was at the Commission, the funding system that had been in place since the Commission’s inception remained the same. The Commonwealth used to allocate funding by numbers. There were some 8160 cases per annum that the Legal Aid Commission could undertake for people for whom the Commonwealth had a responsibility. That meant if you were on any sort of pension at all, you were eligible. It didn’t matter if that one Commonwealth number was a shoplifting plea in the Magistrates Court or if it was a murder trial that went through the Court of Criminal Appeal, up to the High Court and back again for re-trial. Both matters were just one number. So as you can imagine, that meant that the State government never had to put its hand in its pocket for Legal Aid at all. The vast bulk of the funding came from the Commonwealth. But I’d been there for a month and the Commonwealth announced that it was changing to dollar funding. They said you can have the same dollars that you had last year tied to CPI. Well we knew how to manage numbers but no one in the Commission knew how to manage dollars. So it was an enormous change and it took a complete rethink on how to manage Legal Aid dollars.
After you’d been there for a month?
A month. It became a mammoth task and fortunately I had an enormously skilled deputy who was not a lawyer but was an absolute whiz at economic projections. She worked out these formulae which actually worked. It took us a couple of years to settle it down but we could accurately project our spending.
I should tell you a funny story. Apart from the funding change the Commonwealth also decided that it would only take 50% responsibility for dollars. This meant millions for the State government. We’d had all these discussions with Commonwealth bureaucrats about this change of funding procedures and I stupidly thought that if I went off and talked to Commonwealth Attorney General Lionel Bowen, that I could negotiate some different scheme for South Australia. That was particularly because most of the other State governments funded Legal Aid or were capable of funding Legal Aid out of their statutory interest monies. That was because interstate, all property transactions went through solicitors trust accounts whereas here in South Australia we’ve always had land brokers doing those transactions so none of those monies went through trust accounts. I went off to Canberra and sat outside Lionel Bowen’s office for a couple of days and eventually got admitted thinking I would have a little chat with Lionel and he would understand South Australia’s position. There were all the same bureaucrats I’d been arguing with for weeks and weeks all sitting around him, minding him. I had no idea that politicians never see you on their own. Anyway, I did manage to get my point across to Lionel. I remember him talking about the numbers system and he used a very sexist analogy. “Lindy,” he said, “this number system was like sending your wife out shopping telling her she could buy three things and instead of coming home with a jar of vegemite, a toothbrush and a Wettex, she came home with a Rolls Royce, a mink coat and a new house.” Which was true. I did manage to persuade him that South Australia’s position was different, and so we started at 80% Commonwealth funding 20% State. So that would have saved the State government a lot of money.
How many years were you at the Legal Services?
During that time, how much of your time was spent as the head administrator of Legal Services, dealing with these kind of political and administration issues, and how much of your time was spent actually running cases?
I loved my days at Legal Aid. I made it clear from the time that I started that I wanted the lawyers who worked within Legal Aid to regard themselves as the biggest poverty oriented law firm in Adelaide. They were to behave like professionals and not like bureaucrats. We did wonderful things in those days and everybody was very service orientated. It was a much smaller profession so that in terms of sending work out into the private profession, I had a much closer handle on what the private profession were doing with their cases - whether they were defending when they shouldn’t be defending or taking a matter that was too serious for them to take. I could just ring them up as Director and say “I think you should brief that case, you shouldn’t be doing it” or “what were you doing?” if that trial went far too long, I could say “I’ve had a look at the transcript and there was a lot of unnecessary cross examination and time wasting”. It was much more hands on. We had three non-qualified assignment officers who were handling the paperwork. If there was a matter that they were troubled about, they would bring it to me because the deputy wasn’t a lawyer, or they would take it to a manager in the Family Law, the Civil Law or the Criminal Law section and that lawyer would help them to deal with the problem. It seems to me that the Commission is very much more bureaucratic. Its services are delivered in such a way that the system no longer resembles a partnership between the Commission and the private profession. If I had both sides legally aided in a Family Law matter, I’d bring them into the Commission and run a mediation. It was silly for Legal Aid to waste a lot of money funding both sides in cases where there wouldn’t be huge property settlement issues. It was much better if they could be settled.
The thing that I was really proud of was our civil section. We actually made money out of our civil section because they ran their cases very well and we won a lot of big cases that the private profession wouldn’t take on. We positively made money out of them. I think it’s a very sad thing that Legal Aid, quite soon after my leaving, stopped operating Civil Legal Aid. I think that the sad thing about that is this. With our Civil section and our successes in the Civil section, that was the one area of our service where clients would go to their local MP’s and they would tell a story about how “I couldn’t have done this if it hadn’t have been for Legal Aid”. These people weren’t alleged criminals. They were ordinary people who had good things for the politicians to hear about Legal Aid, as opposed to ‘they just represent the guilty and the wicked.’ It was a very positive thing for Legal Aid funding that the politicians and the public to hear the good stories. It reflected on the whole organisation and I always think it was heart breaking that they stopped doing it.
It’s politically less attractive to be throwing money at what the public perceives to be criminals.
As opposed to someone who is rightfully entitled to a judgement of some sort and couldn’t have been able to achieve it without Legal Aid.
But you asked me how much time I went into Court; I think I did virtually no trial work because the administration burden was too big to do that but I did a lot of appeal work. That was a joy because I only did appeal work for cases that our lawyers had run and lost and it enabled us to take what I would call ‘test cases’ - are the Correctional Services Department properly imprisoning prisoners, or are the Courts properly bringing to account good behaviour remissions. So we did a lot of test cases as well.
It must have been great for the people working under you at Legal Aid to be involved as part of those test cases, presumably as your junior sometimes, but also to be working under you. It must have been a great experience for the young lawyers.
It was a very harmonious group and a very enthusiastic group; it was a bit like a reproduction of Johnston Withers in a way because people didn’t have to worry about profits - there were no profits. I had wonderful people working with me. I had Barry Jennings as Chief Counsel first of all and then Malcolm Gray. I think we had a very good reputation, I think we delivered quality work.
You were there for five years. We should move on to what I think has been the longest section of your career, and that’s being at the Bar. You’re a barrister at Bar Chambers now - did you go straight to Bar Chambers after Legal Services?
I did. By the middle of 1991 I wanted to return to doing more Court work. Even though I thought it was a very important job I was doing, I was finding myself thinking more and more about getting back into Court full time. Obviously the path to that was to the Bar. So I went to Bar Chambers in 1991 and I’ve been there ever since.
Talk to me about Bar Chambers and perhaps the Bar generally? You’ve been there as you say for quite a number of years now - how has the Bar changed since your arrival in 1991 and now in 2014?
It’s grown It is much more recognised and used. Its a much more focused professional group than it used to be. Back in the early 90’s all barristers were members of the Law Society, we were all members of the profession and it was much more of a de facto break away from the fused profession than it is now. Now there’s a real recognition of the difference in skills of solicitors and barristers; I don’t think there was so much distinction back then. It’s been an interesting learning curve to watch the Bar grow and to watch people become much more professional advocates.
When you first went to the Bar, did you focus mainly on Criminal Law from the outset?
I did. When I first went there I was doing almost full time crime despite the fact that I had done a lot of civil work at Johnston Withers. That was just because there seemed to be a lot of criminal work around and that was the jurisdiction in which I was briefed.
I want to talk some more about that because knowing you as I do, the criminal law and jury trials are your real passion and always have been. Although obviously your intellect and abilities are such that you’re also a great appeal advocate. Tell me more about being a criminal advocate and about jury trials and what attracts you to that kind of work as an advocate?
It goes back to what I said earlier that I am passionate about fairness and I’m passionate about ensuring the fair trial process. I believe, and have always believed, that the jury system is the fairest way to ensure justice. It doesn’t always ensure the truth but it certainly ensures justice. In all my career I can only think of literally a handful of trials where I was surprised at the verdict. I thought ‘how did he get acquitted?’ or ‘why was he convicted, he shouldn’t have been?’. I think juries get it right most of the time, provided they’re directed correctly by the Judge of course - and that’s not always the case. I suppose I have to be honest, I love the theatre of a jury trial. I love the passion of the whole thing. A jury sits there and a story unfolds through narrative before them. Ensuring that the correct narrative unfolds and seeing the story come out through witness’s mouths is a fascinating process.
I want to talk a bit more about that because I think of all the lessons I learned as a junior, or a barrister in training if you like, which came directly from you, was the art of telling a story. And the art of telling a story through witnesses and submissions. It’s not the case in a criminal trial that you just have to establish a bit of doubt in some witness’s testimony or anything like that.
No, it’s a dangerous concept just to rely on reasonable doubt.
I think that the art of any advocacy is telling a story, even a trial before a judge alone or in an appeal. People are attracted to stories and being a jury advocate or a trial advocate really hones one’s skills in telling a story.
Yes I couldn’t agree more. One of the most dangerous things, and one of the things that I have taught over many years in training advocates, is that it is not your question that is the evidence. Time and time again I’ll see young advocates who think that if they ask the question that that somehow becomes the evidence. For example, you might have a complainant who has one previous conviction for assault and you’ve thrown away your shield and decided to ask him about his one conviction. So they do that and that’s fine and that’s all admitted and then they might have a relative who was a witness to whatever happened who will come up on the stand and they’ll ask questions like “have you seen him punching other people at parties?” “have you seen him knocking people down outside the boxing ring?” Well of course they’re going to say “no” but they ask the question thinking that their question is evidence. It’s never going to work; its quite counterproductive.
The art is getting the witness to tell the story or get the words from the witness.
Exactly. Your question should disappear from the jury’s mind.
I want to come back to some of your favourite trials or highlights in a moment, but while we’re on teaching young barristers - the Bar Readers course in South Australia was established relatively recently and I know you had a big part in the establishment of the it. Can you tell me when it was established and how it was established?
It started with a group of barristers and largely the push was from Bar Chambers. We started thinking that we really needed to have a training program specifically for barristers, largely because the eastern seaboard States had requisite Bar reading courses before admission to the Bar. We thought the Bar had reached the size and had the importance in the administration of justice that there needed to be a special program. We spent a lot of time looking at interstate courses, looking at content, working out how we’d teach it and I think we started in 2001. I think the first course was 2001, I might be a year or so out. It became a requisite for all practitioners who wanted to go to join the Bar Association, even if they’d been a solicitor for 20 years, to do the course and to complete the course. I think it’s been an enormous success and it’s something of which I’m very proud. I’ve always run the advocacy model until the last couple of years. That task has been largely taken over now by the Australian Bar Association which is a good thing because it means that interstate barristers, as well as SA barristers are coming to teach our reader. It also has enabled us to combine with Western Australia and the smaller States to teach advocacy and its more broad ranging now with that teaching.
Do you think the Bar Readers course is particularly important now given that many people go to the Bar having been at perhaps a large commercial firm or really anywhere without the opportunities that you had as a young lawyer of being in Court all the time and also of having a mentor? A lot of people grow up without the kind of guidance that you had as a junior, do you think that’s one of the reasons why the Bar Readers course is important?
I think that is exactly right. I regret the lack of the junioring opportunities that young advocates had in my days. I mean largely that’s financial. Legal Aid can’t afford to have juniors always go in with seniors except for perhaps legally aided murder clients. That’s a tragedy because I learnt so much from Elliott, from Ted Mullighan, from Frank Moran. I juniored so many wonderful advocates and learnt something different from all of them. Nowadays people don’t get that opportunity. Even if it is a private paying client, the cost of a junior is often prohibitive.
Even then as a junior, we both know from our own experiences, there are leaders who are excellent at teaching you things and at talking you through their preparation and what they’re doing. I suppose the other thing the Bar Readers course does is ensure that there is someone with the responsibility of teaching you something rather than just leaving it to fortune.
Yes, particularly if you focus on the advocacy side of it. The opportunity to spend two weeks actually standing up and doing it. Being critiqued and talking through “what were you trying to do at that point?” and “do you think it worked or not” and “maybe you should try it this way” is a very good way to learn. Much better than if you do that with a client sitting on the end of it letting you practise on them.
Of course the Bar Readers course has turned out to be a great success.
I think it has. We now have Silk graduates from Bar Readers so I think that shows that we’re growing up, and we’ll have many more. Because of the commitment of senior members of the profession to Bar Readers, not only in the teaching of advocacy but in the individual components that they undertake, every young barrister is given an introduction to a person whom they can then go to with a problem. And somebody like Ted Mullighan who taught ethics to Bar Readers up to his unfortunate death, was an identified person who every young barrister or even older barristers knew they could go to and who would help them.
It comes back to what we were talking about earlier, albeit earlier in the context of being a woman at the Bar or a female practitioner, that having a mentor and having people to turn to, not being afraid to ask questions of, is just so crucial.
And not being afraid to make a fool of yourself in front of.
And really, right up to being a senior practitioner, it doesn’t stop.
It doesn’t stop, no. That’s the beauty of a Chamber. You can walk into the next room and test a theory. I mean that happens all the time at Bar Chambers although sometimes it drives you mad .
Can we go back to your career - what year did you take Silk?
Was that a big turning point for you? Did your practice change a lot?
Well it did. I took Silk off the back of a very long running junior brief, and that was the three war crimes trials. I was junior to Michael David in those trials but Michael and I worked very closely together and he allowed me to take aspects of it myself, to argue legal arguments aspects of it myself. He, of course, took the important witnesses and addressed the jury in the brilliant manner as only Michael can do, but it was very much a joint effort. He, of course, took the ultimate responsibilities as a leader always has to do. I was a bit surprised when I was prompted to apply for Silk because I thought I’d perhaps spent the last three years doing nothing but junior work. Maybe that was because the Court was conscious of the fact that it was a team effort. My practice changed in that of course I was no longer junioring anybody; it changed because of course you do get the more difficult work. I mean obviously you don’t brief a Silk in a small matter and you do have to take ultimate responsibility for what happens in the Court. I think I’ve been the sort of silk who’s always been very collaborative with people working with me, including you, where I think often the best time in preparation is spent thinking about the case, thinking about where we want the case to be and how we’re going to get there.
Case concept - the old case concept case theory. Why did this happen? What is our reason? What are we going to tell the jury? What are we going to say to the Judge about why these events unfolded? That stopping and thinking is something that with the way that time is costed and valued now, is in danger of being lost because people don’t believe they are entitled to sit there for an hour and just think.
Or just talk something over with either your junior or your solicitors or the person in the room next door in Chambers.
I suppose you can put it down to a conference.
Or there’s no charge for it but people are very concerned about spending time doing what they see as work that they don’t charge for.
Because you don’t end up with a piece of paper or a letter or something at the end of it.
Back at your career to date, do you have any cases that stand out as your favourite or as career highlights?
The war crimes obviously has to be a huge one. I heard Michael David interviewed on the ABC last week and he certainly nominated that as his career highlight. It was just because it was such an unusual and fascinating case that you were back in 1942 trying events that occurred in a theatre of war on the other side of the world.
How did it come that the group of you became involved in the war crimes cases?
War Crimes, the true story.
I’d like to describe the expression on your face right now for the recording but I’ll leave it to you .
It was a Commonwealth prosecution. I was brought into argue a Federal Court pleading point about particulars. At that stage there was an issue in the trial about fitness to plead. There had been no committal because of the fitness issue. Michael David was briefed to argue that in the Supreme Court. Michael and I sat down together and said “this is going off the rails, we must go to the Commonwealth and we must say let’s start again. Let’s forget the fitness issue. Let’s go back and let’s have a proper ordinary committal and a proper ordinary trial and forget these side winds” and that’s what we did. That’s how we came to be briefed from what was the re-start of the trial. Then the two other individuals from South Australia were charged and naturally enough they briefed us as well.
And in addition to war crimes, any other particular trials or cases generally that stand out?
You know there are a lot of trials that I loved which weren’t particularly high profile but, I suppose it’s just human nature, the ones that stick in your mind are the ones that created the most publicity. You can’t help but hold those in your mind, so you can’t help but remember cases like Nemer, Easling, like Aitken, cases that were on the front page. Cases like Ralph Clarke. There were lots that weren’t on the front page that were equally interesting, equally passionate and involving but they obviously don’t stick in your mind like the high profile ones do.
And it was after you’d taken Silk that you became the first female president of the Law Society of South Australia. That must have been a very difficult job being President of the Law Society, which is very time consuming, particularly for someone like you who was very high profile at the time, as well as maintaining your practice?
Yes I’m trying to remember when was I president of the Law Society.
It was very time consuming. I had a terrific Chief Executive Officer, Barry Fitzgerald, at the time, and I used to meet him every morning before Court. So I’d meet him every morning at the Law Society at 8 o’clock then he would bring matters down to me at lunch time and then often I’d be back at the Law Society after hours. It’s a bit like they say “how do you feel now you’ve stopped hitting your head against the wall?” You don’t realise until you stop doing it how much it hurt.
It was one of the years I was working for you and I remember it being very chaotic but incredibly fun.
I was the first woman president of the Law Society. I think it was the only first that Dame Roma left and if she hadn’t been appointed to the Bench when she was, she would have been President of the Law Society in the next few years. So it was sort of fortuitous rather than anything special. One of the things I started as president of the Law Society that still carries on to this day is the weekly “Points of Law” column in The Advertiser. I think that is a really valuable tool. Some Presidents have used it more effectively than others. If there is something about the process of the law that needs to be explained or a different view point put on it from the way that the public is reacting, it’s a very useful tool.
On that, and I suppose particularly on public perception of the law and the legal system, one of the topics that I find very interesting and I know you do as well, is political involvement and the comment of politicians on the operation of the Court, most obviously in the area of sentencing. We all remember the challenge to the decision that Paul Rofe made in respect of Nemer and the publicity that arose there from that and the consequences for the DPP and for Rofe personally. Can you talk a bit more about that?
In my career I have seen more and more of that sort of judgment from outside and critical judgment from outside about the workings of the Court and the process of the administration of justice. I think it’s very unfortunate indeed. People who are involved in the system, and even ordinary members of the public who take the time - and they’re often retirees obviously - but people who take the time to sit through trials, jurors who have the experience of sitting through trials, come out of the process with a very different notion than the one that is publically spruiked. Public confidence in the system of justice is absolutely fundamental to society and the process should be one whereby that confidence is promoted rather than undermined, and it is not in the public interest that it is undermined in the way that it is.
What do you think is the reason? It seems to me that maybe in the last 15 years at least in South Australia, the government has become more vocal when it comes to commenting upon legal process. What do you think is the reason for that? Or do you think it’s always been there?
No, I think that somewhere along the line the perception has ballooned that law and order and toughness on crims is seen as vote catching. It’s the view that that is the attitude the public wants to read and hear and see in the media. Now the fact of the matter is that every case is unique as and every case should be handled individually. But there is now the cry for longer and longer sentences. We know that jails are overcrowded and the reality of the matter is that, although you understand that some crimes are so serious that people have to be imprisoned, generally speaking imprisonment does not work as a deterrent. Instead of explaining that to the public and instead of promoting thought and consideration about how best to deal with crime, there is this knee jerk reaction that we should just jail people more often and for longer. The vast majority of imprisoned offenders will at some time in the future re-join society. When they do, we want them to have a better chance of living a useful, law-abiding life. We don’t want or need them to be worsened by the experience.
Do you think that there’s any particularly obvious or helpful way that the legal profession can assist in educating or explaining that to the general public? Because of course we’re reliant on media organisations -
Exactly. It’s very hard to keep the media up to the mark; the media will always be there to report the Crown prosecutor’s opening and the most gory aspects of it. When it comes to the end of the trial and there’s an acquittal, it might be buried on page 15 one inch.
We’re all used to reading those articles which say “and here’s the previous convictions that the jury was never entitled to hear” without an explanation of the rules of evidence and why the jury was never entitled to hear about them.
Yes, we’re moving towards a push, and I hope it never happens in my professional lifetime, which says that the jury is always entitled to know the antecedents of a person charged. That’s a very dangerous thing because we understand, and indeed centuries of criminal jurisprudence, not just here but in the common law world, understands the prejudice of that.
Finally, looking back from where you stand now, over your career, who are some of the greatest influences on the legal profession or the leading lights or most significant influencers of the legal profession in South Australia in one way or another?
Well I think that the Bray Court will remain forever a fantastic phenomenon because John Bray was such a wonderful jurist and the judgements that emanated from that Court were so learned and wise. Len King was a wonderful Chief Justice and he influenced the way we practise and the way that the Courts administer their tasks. I think that John Doyle was a wonderfully learned person as well and I think that Chris Kourakis has stepped admirably into those shoes. We have been very fortunate in our Chief Justices.
It’s one thing that’s notable to me having practised in other jurisdictions both in the UK and in NSW is how -- and people often say to me “wow the South Australia chief justices in particular are sort of punching above their weight” is that we certainly have a history of exceptional chief justices.
Yes and that can make an enormous difference to the profession. It’s such an influencing thing the way that the Supreme Court, and particularly the Court of Appeal, goes about its task. I think that the influence of those Chief Justices means that practising the law in South Australia has always been a developing process. We are fortunate in that we have never approached our task in a rote like way. Things have not been stagnant, things have changed dramatically in my time and that’s always been through a process of reason and a process of trying to work out what is trustworthy, what is reliable, what is capable of being acted upon with confidence. If people get back to those basics and think in all jurisdictions “What is trustworthy evidence? What is reliable evidence?” Its terribly important. We talk about influences, I think that people like Andrew Wells and Brian Cox in their approach to the rules of evidence have been very influential and we need to encourage and make sure that we maintain that tradition of constantly rethinking rules of evidence and how they operate. The people who are careful and thoughtful about those aspects of the law are always going to be able to be an influence for the good.
I want to ask you another question about women in the profession; we spoke a bit about it in the context of your early days in the profession, but what have you observed in terms of the role of women and the presence of women in the profession over your time?
Obviously I’ve seen many many more female graduates, many many more women at the lower levels in firms and many many more women at the DPP and in the Crown Solicitors office. But unfortunately I have seen very few women becoming senior in the profession.
Do you think that’s across the board? Have you noticed a difference in different areas of the law? Say, Family Law? Criminal Law? Commercial Law?
I see more and more women – well, perhaps not more and more but I see that they still tend to gravitate to Family Law because they believe that that’s where they will have a niche and where they are more likely to have their skills recognised. I think there are more women practising in the criminal jurisdiction but as far as commercial work is concerned, it is as bad as it ever was. It is still a male dominated area.
Why do you think that is? Do you think its market forces? Do you think it’s because there’s less client demand for women at the Bar say in commercial law?
It’s clearly cultural. There are a lot of young women in commercial firms, who are used or employed at the back room level who rarely get the chance to instruct the barristers direct. They don’t have the prime conduct of the matter. They play a secondary role and I think that they are simply shut out of that area. Now whether that is by reason of client demand or whether it is driven internally by the firms, I’m not sure. I think it’s probably a mixture of both. Men in firms are quite prepared to accept female colleagues provided that they are not of equal or higher status than them.
Anecdotally I’ve had a case recently, I should say in NSW, in which I was instructed by a female partner of a firm who was assisted by a female senior associate and the client in that case - it was a construction company - said “I don’t think the mix of the team is right” and said quite frankly that they wanted a male person in charge of the case. That obviously puts the firm in a difficult position because they’ve got a client who is worth a lot of money to them who is demanding that, but on the other hand it’s contrary to their culture or so they say. Their response was to indeed put a male partner on the case. Do you think that happens a lot? What do you think from your position that commercial firms can do in that kind of situation?
That is the classically difficult situation because of course the firm has to be responsive to the client, but I would hope that the partners in that firm would talk it through with the client and make sure the instruction was being given for the right reason. It probably happens much more that the firm itself makes the decision of the mix. When I was President of the Law Society, I noticed that women employed by firms were the least represented group of practitioners who were members of the Society. I made it my business to go round and talk to all of the law firms about why that was so. I talked with the employed women and – if they existed – female partners. One of the constant complaints I received from talking to the female employed solicitors was that they would do an extraordinary amount of work on a matter and when it came to bringing the brief to the barrister or the Silk, the boy in the office next door would be picked up and taken to the briefing or to Court when he had done very little on the file. I should add that this was in 1998. One of the big firms said that they would not let me come and talk with their female lawyers unless there was a partner present. I said “well that’s a problem for you because you haven’t got a female partner and this is a girls only discussion”. In the end they forbade me from coming and talking to their solicitors. The culture will not allow women to demonstrate what they can do in the commercial sphere.
Obviously its somewhat self fulfilling; we’ve spoken quite a lot about mentors and role models and that kind of thing, so you grow up as a female junior member of the profession whether it be in a firm or at the Bar and you look ahead of you and you see so few women commercial Silks or commercial senior practitioners. In that context, and you spoke earlier about Dame Roma’s change of mind throughout her career from being quite opposed to affirmative action to actually thinking it’s a positive thing, what’s to be done?
I believe that there has to be some sort of affirmative action but I trouble as to how affirmative action can change culture. We have all sat by for decades saying “it will happen in time” but it hasn’t happened. It’s really time to do something about it. I don’t believe in tokenism, I do not believe in promoting people beyond their merit, but it seems to me that sensible choices have to be made. If there can be some way of encouraging the sensible choice of a woman junior or a woman partner to handle a certain matter, or a brief to be given to a woman as opposed to a man then there has to be some incentive for that sensible choice. I’m not suggesting choices that are based on anything other than merit but the options have to be widened. I don’t know how you encourage that, but I have some ideas.
I suppose part of the discussion is often, or should be, around what counts as merit? There are lots of skills that make up a good lawyer and it’s perhaps thought that women can offer skills that men don’t. That might be a choice based on merit or a factor based on merit that could be taken into account?
It could. Perhaps if Judges promoted less of the adversarial antics of men that go on in Court, and that became a positive. You know, if in fact there was less heroic carry on and aggressive behaviour in Court, if that was not tolerated, that would give the opportunity for women’s adversarial style to be appreciated. A style which is not necessarily aggressive or directed towards point scoring off the other side should be seen positively. If sledging and aggression was frowned on by the Courts and seen to be a negative, then that would give women an opportunity to demonstrate their skills. If women’s style of advocacy was seen to be favoured by the court that would soon be seen as a positive skill.
As long as it’s a heroic battle in court, I don’t think women want to play the game. It’s not just that they’re not good at it. I’m sure many women probably can give as good as they get. But while the Courts tolerate that sort of behaviour and while it seems clever to be aggressive, to be tough and hard and take no prisoners, that will not let women demonstrate how good they are. As well, I think that women need to think of other ways of doing things, like they have to start publishing for example. So you pick an area of commercial law, you publish and you lecture and you give continuing legal education talks, you work with Bar Readers and you give tutorials about that aspect. Then, when that issue comes up in a case, someone will remember that Elisa Holmes knows about that piece of legislation and she knows about that aspect of litigation, and they’ll come to you.
Yes, it’s a different way of appealing to the market. In terms of the Courtroom environment, it often strikes me - not necessarily in this jurisdiction but in some jurisdictions - that for instance informal sledging at the Bar table is often seen as part of the sport and yet it’s something that sometimes your male solicitor partners love seeing it. They positively enjoy it.
They see it as a victory when in fact it has nothing to do with the case at all.
That’s right. There’s very often this impression that they want a barrister up there who’s fighting and sledging. All those sort of peripheral things are seen as part of the fight. But they’re really losing sight of the fact that they’re trying to win a legal argument or a trial or case.
That’s often of course because litigants often don’t like each other and so they use their barristers as champions for their own emotionally driven case. That culture has to change before women will really shine, because we don’t like sledging. It’s just viva la difference. Women are not combatants in that way, we haven’t been conditioned that way. Quiet compliant girls are considered to be ‘good girls’; feisty argumentative girls are considered to be ‘trouble makers.’ I think that judges have a very significant role to play in not tolerating that male aggression in court. They need to send the message publicly in court that they are not impressed. Litigants, solicitors and, of course, counsel need to hear that the judges thinks the behaviour is time wasting and money wasting.
So it’s interesting what you say about finding a different way to appeal to the market because at the end of the day, one has to assume that your clients are going to do what they think is in their interests.
Clients and their solicitors are not going to brief you because it would be a positive step in affirmative action. And why should they? They will brief you when they think you are the one who can win their case. I think there might be a public relations exercise which would help as well. Get on as much media as you can, be asked your opinion by -
Which of course the Bar is traditionally not very good at
No. There would be ways of doing that though. What I think really needs to happen is that somehow men have to be persuaded to come onside. Women need Elliott Johnstons who actually positively promote them with clients and positively promote them within the environment that they’re working, whether that’s referring the matter to another barrister at the Bar or giving another solicitor work in a firm. Men have to want and be prepared to do that in individual cases. I also think that we have to wage a silent war. While men see women complaining about unfairness, they will shut their minds to the prospect of promoting and helping us. The fact of the matter is that men will promote women or tolerate the promotion of women or even encourage the promotion of women who they see acting like themselves. For that reason, I think that we have to play act a bit.
So be clever and a bit more subtle about the way we go about it?
Yes. I would go so far as to say you have to tolerate the male environment in an uncomplaining way. For example, if there are sexist jokes told maybe you have to tolerate them. Maybe you can’t go around the world being politically correct in a politically incorrect environment because you will not be seen as part of the “group”. You’ll only alienate yourself and although I know that sounds like a huge compromise, but to make a change, I think, for a while we have to compromise.
You are obviously an exception to the rule that its harder for women to get ahead -- that doesn’t mean that you’re the exception that it was harder, but you have got it. You’ve got to the top of your game through an era in which we still see even now so few women at the top of their game. What do you think it is either about you or your opportunities or about your timing or about your career generally, and don’t be modest about your answer to this, but that has led to that happening?
Obviously I work hard but so do men at the top of their game. I do not claim to have worked harder than the men who have done well. I was extremely fortunate in that first 15 years of my career having someone like Elliott who promoted me and all women. Since then I have always treated men exactly as I would treat other women. I’ve treated them as equals. I’ve never complained about promotion of men over me or complained that men got better work than I did, I’ve just treated everybody equally and I think that it has meant that in turn I’ve been treated equally. I’ve always simply tried to act professionally even if that has sometimes meant compromising feminist ideals when I see bad behaviour. I wish I had never had to compromise at all, but we live in a real world. I was talking about how Judges should discourage that Y chromosome aggressive behaviour at the Bar table. When I was sitting on the Disciplinary Tribunal I had two Silks before me, one for the board and one for the practitioner obviously, and they started sledging each other at the Bar table and quite aggressively so. I just got up and said “I’m going to adjourn now, you can go outside and finish this conversation and tell me when you’re ready to get on with the matter. And if you do it again, I’ll walk off the Bench again”. If Judges started doing that when they see it happening, it might put a stop to it because the clients might see that that behaviour has angered the Judge and it is unlikely to advance their case.
I suppose one of the problems is that Judges probably at some stage were the participants in that sort of sledging match and also find it entertaining.
It perpetuates the culture. Until people see that as a pathway to losing the case and wasting money, they’ll continue to enjoy the sport. It will be the good result and the hip pocket that should win out.
Alright thank you very much Lindy, that’s the end of the interview.