The Bar Association of Queensland held its annual dinner on 9 September 2022. Whilst the novelty of getting out of one’s pyjamas, or at least donning pants to go with a jacket – a step up from Zoom court attire – to go out for dinner had mostly worn off, there was still a certain frisson experienced by mixing with colleagues at the annual dinner this year, the first since 2019.
And the Toast to the Judiciary from Damien Atkinson OAM KC was just as exciting – not only because listening to Damien in full flight can be a thrilling ride to destinations unknown but also because we could see the Honourable Justice Glenn Martin AM was scribbling out his Response while Damien gave his speech with a certain expression on his face. Written as it was, on a napkin, his Honour’s speech will live on only in our memories, and mostly in Damien’s.
After President Tom Sullivan KC’s welcome and overview of all we had endured and triumphed over as a profession since the last dinner, Damien’s toast was both hilarious and a warm reminder of the best aspects of the relationship between the bar and bench. It was a joy to listen to. Must be that arts degree? Thanks to Damien for both committing it to actual paper and for allowing us to reproduce it here for your reading pleasure.
Toast to the Judiciary
Damien Atkinson KC, 9 September 2022
I asked Richard Douglas for some tips about tonight and he said this in his thoughtful, pastoral way – “keep this in mind, Damien, whatever you say, you’re going to offend about 10% of the audience”. In terms of collateral damage, that seemed kind of tolerable until you look around from up here and you realise that’s maybe thirty souls you really liked. Bummer…
It’s my great privilege, as Tom said, to propose a toast from the bar to the judiciary. I contemplated a Ricky-Gervais style-roast where I just pressed on and on, scoring hits, until one of the judges had a Will Smith moment and it all ended in tears or over social media. But that approach, obviously, is not consistent with the strong bonds between the bench and the bar (nor the extended time left in my career) …
I would like, instead, to reflect on the interaction between barristers and the judiciary in Queensland which, I have been thinking, is a strange mix of the formal and familiar. Especially in a town as small as Brisbane, the judges are everywhere. If you pop out on a weekend, you can find Justice Morrison at the West End markets, buying fruit and vegetables from my mother-in-law; a couple of weeks ago I saw Justice Boddice at the beach (not in his togs if you’re looking for a visual…) and, for some reason, if you walk down Fish Lane in South Brisbane on a Friday night, you’ll find any number of District Court judges, dining alfresco. And as much as you’d like to linger with the judges, particularly that last cohort, you are keenly aware of the need for decorum. You know that, of all the places in the world, this is not the one to get rugby league drunk.
That’s because the way we relate to each other is so unusual: the judiciary’s job by definition is to constantly test advocates and, whilst it’s our role to assist the Court, we sometimes need to push boundaries too. The interaction is respectful and exciting but it’s never complacent or easy. So, with that in mind, I’ve settled on a theme for tonight’s toast and it’s this – wait for it – the most rewarding relationships are also the most challenging ones.
As a general principle that seems obvious. If you want to be with someone who is indiscriminately crazy about you, hangs on your every word, is thrilled by your mere presence, you’re probably going to need a labradoodle.
That’s not our relationship with the judiciary, as you know. And let’s not sugar coat it – the bad days at the bar can be really harsh. Some days you are rolling out your case theory which seemed to work a treat back in chambers, but it’s not selling in Court. There’s no traction. In fact, you are meeting such glowering opposition from the bench that the stormy judicial countenance reminds you of a line from Ozymandias – …whose frown and wrinkled lip and sneer of cold command tell that its sculptor well those passions read which yet survive stamped on these lifeless things… You think that but you don’t say it.
Or other times when I’m on the end of a judicial shellacking, I think of a line from the Love Song of J Alfred Prufrock. I have heard the mermaids singing each to each. I do not think they will sing to me. (If you’re sitting next to a person who didn’t study arts, you may need to explain that they are poems and, no, they’re not coming out on Netflix soon).
But some days the sun is shining on the sea and it’s like you’re back in front of the wonderful Justice Margaret White. The judge is so measured and considerate, you are half-way along George Street before you realise you only bagged the silver. And on these good days, the highs are really high. Think about the first time you read a winning judgment and saw your submissions recited verbatim or your cross-examination extracted on a pivotal point. Its hard to replicate that thrill.
Even modest praise can fill you with happiness. Someone said to me recently, “Ah, Mr Atkinson that last submission was surprisingly lucid!”. Or Justice Crow said to me a while back – “Exactly how long will you be in cross-examination. I’ll be quicker than my learned friend your Honour. Yes, well Mr Atkinson, that’s a very low bar.”
To be frank when you are young and you are imagining the kind of person who could take your heart and make it soar, or crush it till the petals fall, you rarely imagined a judge. And I’ll tell you something else, just quietly, I certainly didn’t have Justice Martin pegged for that role (don’t tell him). But here we are.
We learn certain skills or habits as a barrister – to distil early, to prepare comprehensively, to engage frankly, to persuade creatively… And my key point is that we acquire those skills because they are forged in what I like to call the Judicial Furnace. And we’re better for it. So thank you.
Can I also say to the judges, whilst we are continuing this romantic theme – nobody loves you like we do. (That line has been reminding me all day of a song by Portishead called Sour Times, but I digress). At the risk of being earnest, I would say that the bar is deeply conscious – way more than any other sector of the community – of the rich gifts the bench brings to public service. Just to wait in the applications list, its mesmerising to see judges move seamlessly from succession law, to building legislation, to a contract dispute. We see the courage the judiciary shows regularly in making decisions which elate and devastate in equal measure.
The thing that is most startling for me is the sheer patience judges find every day. As a commercial barrister, you wait for the bail applications to run through so it’s your time. And when it comes to the offending behaviour, you will be listening to the criminal advocates giving wildly implausible explanations so their client can get out. You want to scream out like John McEnroe – “You cannot be serious?” But the judge doesn’t say that. The Judge says something gloriously understated like “That’s one view of the evidence but it may be one that, ultimately, is not adopted”. Oh, really! Selfishly, you can’t help but worry that, by the time the judge gets to your commercial matter, they may be suffering serious compassion fatigue…
To the judges, I say we are grateful for the bench you are. In our jurisdiction we can confidently tell our clients that, whilst there is a real chance that the judge may not share their world view, they will certainly give them a fair and vigorous hearing.
We have a bar that has changed dramatically over the last 30 years in terms of diversity, and a bench that reflects that change. When I was preparing this speech, I read through the old versions of the Bar News from the 1980’s and I can’t tell you how different Bar Dinners looked back then. Incidentally, the best speech I read was from Justice Martin at the opening of the Inns of Court on 26 November 1986. (I’m trying to placate him before he speaks tonight in response, but I can see him scribbling intensely over there and its unsettling!).
And we have the great blessing of judges who take their duties very seriously but discharge them with the clear, unpretentious ethos that is so admired in this state. I was reading an essay the other day by Justice Keane from 2014. One passage read verbatim as follows:
“In hindsight, Lord Denning appears to have been a judge rather too concerned with his place in the history books. A place in the history books is the last thing a judge should be worried about. Judges should recognise that in 50 years time no one will be interested in reading what we have written.”
The next sentence is a little risqué for present purposes but in PG terms it resembled a line from a Kenny Rogers song: the best you can hope for is to die in your sleep. That was in the foreword to a work called Key Issues in Judicial Review so you can only imagine the colour and movement his Honour will bring when he turns to non-judicial pursuits!
We’re all aware that Justice Keane retires from the High Court next month. I would like to record on behalf of the Qld Bar the immense pride we all take, respectfully, in the leadership he has shown, and the standard he has set, both as a barrister and a judge.
In closing, I am reminded of a speech that the former chief justice, Cate Holmes, gave. She was addressing some newly admitted barristers and they were all starry eyed, gazing up at the bench, wondering, perhaps, if they would one day be elevated themselves. But her Honour said that it was actually the judges who were envious of the newbies because the judges’ time at the bar, particularly the early years, were amongst the very happiest days in their careers. That comment from her Honour says so much about how much we share with, and have to learn from, the Bench. And we’re glad for it.
Can I ask you counsel then to stand and toast to the judiciary…
