Toast to the Judiciary
BAR DINNER 2015
Justice Kiefel, Justices of the Supreme, Federal and Family Courts, judges of the District and Magistrates Courts and the Federal Circuit Court, distinguished guests, colleagues. It is with great pleasure that I propose the toast to the judiciary on behalf of the bar tonight.
The origins of the modern judiciary can be traced back to the 12th Century. In 1178 Henry II chose five members of his personal household “to hear all the complaints of the realm and to do right”. The judges were to carry out their work as part of the King’s Court and their activities were to be supervised by the “King and the wiser men of the realm”. This was the origin of the Court of common pleas. The Magna Carta prescribed that this Court should sit permanently “in some certain place” which in practice was at Westminster.
Judicial salaries were paid irregularly with the royal pay cheque due at Easter and Michaelmas each year. One chief justice of the King’s Bench, Roger of Brabazon was paid by the King only on four occasions between 1294 and 1306.
Accordingly the early judges were heavily dependant on other sources of income and as one commentator observed “in the Middle Ages everyone took bribes and few thought the worst of thy neighbours on that account”. Thankfully in the six or seven hundred years that have followed a more regular and appropriate method of paying judicial officers has evolved.
But what of the relationship between the bar and the bench. It has been developing for 700 years. What constitutes the ideal relationship between the bench and the bar has been considered by legal writers for some time. Sir Francis Bacon once wrote:-
“Judges ought to be more learned than witty, more reverend than plausible and more advised than confident. Above all things, integrity is their portion and proper virtue. Patience and gravity of hearing is an essential part of justice and an over speaking judge is no well-tuned cymbal”.
It is somewhat ironic that Sir Francis Bacon was removed from the office of Lord Chancellor in 1621 for accepting gifts from litigants.
A former Justice of the Supreme Court of Louisiana, Joe B Hamiter delivered a speech to the Louisiana State University in 1960 the topic of which was the ideal relationship between the bench and the bar. He said:-
“This relationship is fraught with the hazards and tempers that sometimes seethe in the stormy billows of the Courtroom and of antagonisms that occasionally arise from the loss that must, inevitably, be sustained by one side as every legal battle ends.”
Lord Radcliffe described a model judge as “wise, learned and objective”. Lord Denning said “if you are an advocate you want your client to win. If you are a judge you don’t care who wins exactly. All you are concerned about is justice”.
I came across a recent paper on bench and bar relations written by a second year lawyer Gayatri Kapur who practices in India. Ms Kapur identified a number of “duties” which she said a judge owed towards the bar the most important of which was for the judge to avoid confrontation with lawyers in the process of argument and examination of witnesses. She said and I quote “A judge should not interrupt counsel while he is arguing relevantly and purposefully. There should be patient hearing and cooperation from the judge as otherwise it would lead to a miscarriage of justice”. Many of us at the bar would very much like to see Ms Kapur argue a case in this country.
The Honourable Dyson Heydon wrote in an article entitled “Reciprocal Duties of the Bench and Bar” published in the Australian Law Journal in 1987:-
“The common law trial is the ultimate vindication of justice and it relies on an interplay between the bench and the bar. … It is in recognition of the importance of regularity in the conduct of a trial that studious forms of courteous address are employed by judges to barristers, barristers to judges and barristers to each other. They may not always be sincere but they help forestall intemperate and disorderly conduct.”
I personally think there is no particular set of rules which defines the relationship between the bar and the bench. Much depends upon the personality of the judge and that of the advocate. Some judges are, with respect, just difficult to please present company excluded of course. On the other hand a skilful advocate can establish a reputation with the bench which fosters respect.
In a lecture presented to the Chinese University of Hong Kong Justice Kiefel said:-
“Much has been said about the need for a judge to be courteous to the lawyers appearing before the Court and to witnesses. It is not only an example that needs to be set it is the most effective way of managing proceedings. In Court a Judge’s real temperament is exposed. When it is said that a person does not have the temperament to be a Judge this usually implies that the person has a combative manner or a short temper; whereas a model Judge is calm and measured. Courtesy extends to the litigants and it should be evident in the reasons for Judgment. It was once famously remarked that the most important person in the courtroom is the litigant who is going to lose.”
The relationship between the bar and the bench depends to a large extent on the personalities involved. Some barristers are known for their ability to “push a judge’s button” which in my view should be avoided at all costs. As Counsel we should have the flexibility to adapt to a given set of circumstances. After all we are being paid to present the best possible case for our clients.
However, especially in our early years at the bar, it is not always easy to manage on the one hand the less than comprehensive brief, clients and witnesses who are economical with the truth, instructions which seem to have no relevance to what has been pleaded and and on the other hand the particular personality of the judge assigned to hear the case. That is, of course, because your Honours are all very different. This variation in style in turn has a direct affect on the relationship between you honours and the bar. What pleases one judge may find displeasure with another. My I, of course with the greatest respect, proffer some examples.
Justice Daubney has a very direct approach. Counsel is well advised to get straight to the point at the same time informing his Honour why the matter has not been mediated. Some say His Honour’s motivation for expediency is the prospect of a quick but satisfying lunch at the Brisbane Club with Judge Rackeman. We all now know that his Honour was asked by the accused during a criminal mention to join him in a pizza. The request, of course, was declined. His Honour’s palate is much more refined than that. In the words of Oscar Wilde Justice Daubney has very simple tastes. He is always satisfied with the very best.
The now retired Justice Fryberg was very thorough in is approach ensuring that all issues real or perceived were considered in minute detail. In Rugby terms, His Honour played an expansive game. He liked to get the ball wide early in the proceedings utilizing every inch of the field. Once his Honour had the bit between the teeth time was no obstacle. His Honour would sit through lunch hours and late into the evening. A junior member of my chambers asked me for advice when appearing before Justice Fryberg in the applications jurisdiction. I informed him to take water and food to Court possibly a blanket and certainly tell his wife that he wouldn’t be home for dinner.
COMMERCIAL LIST JUDGES – MCMURDO & JACKSON
The commercial list judges Justices Phillip McMurdo and Jackson also have their own particular style. Some say it is very fashionable to be briefed in matters on the commercial list. Maybe so. But counsel should proceed with caution. Their Honours, like the Lion or the Cheetah, can smell weakness from a great distance.
Justice Phillip McMurdo, affectionately known to some of us here as “fabulous Phil”, allows you to embark upon your argument and then at some point very politely interrupts with what you consider to be a relatively harmless question. However the experienced campaigner will tell you such question is just like the tricky leg spinner for which His Honour was once famous. You have been soundly beaten. Either clean bowled or caught plum in front.
Justice Jackson is just as deadly. Don’t let his dashing good looks and smooth attire lull you into a false sense of security. His Honour has the uncanny ability to know more about the facts of the case and the relevant law than the counsel who appear before him. Most counsel don’t see the deadly strike coming. It usually takes only one or two questions from His Honour for a case that you have been preparing for months to be reduced to ashes.
BYRNE – CHAMBER APPLICATIONS
The Senior Judge Administrator, Justice Byrne has a particular style largely based upon an expectation that those appearing before him will bring to the task the same exacting standards that his Honour exhibited when he was a the bar. A perfectly reasonable approach.
At last year’s dinner Roger Traves QC, in proposing the toast to the judiciary said, in effect, that in my early years at the bar Justice Byrne unfairly picked on me. Nothing could be further from the truth. There were occasions where his Honour may have taken me to task on the form of order I was asking him to make, pleadings I had settled or the legal proposition I was attempting to propound. On reflection each of those occasions was perfectly justified and of course many at the bar found and still do find themselves in a similar position.
Whilst his Honour’s legal acumen, experience and ability as a trial judge are second to none I believe his Honour does some of his best work in the application’s jurisdiction. His call over is like a scene from the Roman Colosseum. Like the Christians thrown to the lions the junior practitioners are dispatched rather quickly. His Honour then toys with the more senior practitioners before putting them to the sword. Some say that a reference to a US decision is Justice Byrne’s kryptonite. Not so. It will only get you a very short stay of execution.
Counsel should never complain of falling foul of Justice Byrne in the applications jurisdiction as his Honour does not vary a great deal from his usual script. He commences the call over by asking for consent orders or adjournments where all parties are present or represented. Without fail there is always one practitioner who approaches the bar table purporting to appear for a number of different parties. That is met with ‘soon after the call over’.
There may be some matters where all parties are represented and present a draft order for his Honour to consider. It is often handed back with a request that it be prepared in English.
If there are no more consents or adjournments his Honour then says ‘let us look at the state of the list’. There will always be an ex parte application which is said to take only 5 minutes but which of course affects the rights of numerous persons not notified and not before the Court and in respect of which, according to the practitioner, there are no decided cases. That is simply a red rag to a bull as far as Justice Byrne is concerned. But without a hint of emotion His Honour will then say ‘Oh I see, let me make a note – no decided cases on the issue. It seems you may need some time to consider your position. Several weeks I presume. Come back when you are ready. Please take your time. Don’t rush’.
Let it not be said that His Honour Justice Byrne doesn’t have a sense of humour or a keen interest in sport. I recall appearing at one his Honour’s callovers the day after a State of Origin game. When the parties announced in a particular matter that it was just a fight about costs His Honour said “the outcome of that contest is about as predictable as a Rugby League scrum. End of the list”.
I have fond memories of the now retired Justice Desmond Derr ington who, I should say, in my experience was always very pleasant and helpful but had his own particular nuances.
One day in applications Justice Derrington entered the Courtroom accompanied by another gentleman. After the Court was opened his Honour said ‘good morning ladies and gentleman. As you can see I have sitting with me today a distinguished member of the Singapore Supreme Court. I therefore trust you will all be on your best behaviour’.
After dealing with the consents and adjournments his Honour then called through the list. ‘Re I love you Pty Ltd, Re I love you Pty Ltd’. There was no appearance in respect of the matter that his Honour had just called. His Honour then said ‘it is actually in the list as je T’aime Pty Ltd which as you all know is French for I love you”. John McKenna announced his appearance for the applicant to which Justice Derrington said ‘Mr McKenna of course how appropriate you being a man of passion’. His Honour then called the next matter ‘Re Whatever Pty Ltd, Re Whatever Pty Ltd’. Again there was no appearance for the matter just called. His Honour then said ‘the matter is actually in the list as Qu’est-ce s’est which as you all know is French for whatever’. That was my matter.
As you can see Justice Derrington not only had a sense of humour but considered himself a master of the French language. When my chamber matter came on for hearing I announced that I appeared for the applicant ‘Giles Arthur St. Pierre’. His Honour immediately said ‘surely you mean Giles (a soft G)’. I took instructions and then informed his Honour that my client pronounced his name Giles (with a hard G). His Honour responded ‘well he is wrong’.
CALLINAN – FULL COURT – TRAVES - DERRINGTON
That reminds me of a story involving my old mate Traves who so very kindly referred to me last year in his toast to the judiciary. He was Callinan’s junior in a matter before the Court of Appeal. Justice Derrington was one of the members of court. In the course of Callinan’s submissions Justice Derrington asked Callinan a question. Callinan was attempting to answer but as juniors often do Traves was tugging on Callinan’s robes trying to attract his attention and hand him a note. As many of you in the room would know it was a pet hate of Justice Derrington for counsel to either speak with their junior or instructing solicitor whilst they were being addressed by his Honour.
The exchange between Callinan and Justice Derrington went something like this. ‘Mr Callinan please inform your junior it is the height of rudeness for him to distract you whilst I am asking you a question. You see that now that I point that out to you. Please speak with him’. Callinan responded ‘I humbly apologise your Honour. My junior should have known better. Will you allow me to speak with him’? Justice Derrington then said ‘please do Mr Callinan’. Callinan then admonished Traves at some length in a voice the whole Court could hear much to the pleasure of His Honour.
Of course Traves was mortified and complained to Callinan all the way back to chambers saying he had embarrassed him in front of the Court of Appeal. Callinan told Traves that he was being over sensitive and that if he had to throw his junior under a bus to win a case then so be it.
COURT OF APPEAL
It would be remiss of me not to mention the Court of Appeal. The first judges appointed to the Queensland Court of Appeal were Justices Tony Fitzgerald, Geoff Davies, Bill Pincus and Bruce McPherson. They were truly scary. Callinan often referred to them as the ‘hall of knives’ or ‘Apache territory’.
Whilst I did appear before the court of appeal as originally constituted I managed to escape serious injury.
In recent times the Court of Appeal has become more mellow. Please do not take this as an invitation your Honours to return to the old ways. Recently I appeared before the Court of Appeal constituted by Justices Gotterson, Morrison and Boddice. I was for the respondent. As we approached the luncheon adjournment the appellant’s counsel had not concluded his submissions and the court enquired of me how long I would be after lunch. I replied about forty-five minutes. Justice Morrison then responded that possibly the court would only need resume then at 4pm which would give me time to go for a run. Justices Gotterson and Boddice concurred. I didn’t have the heart to tell their Honours I normally swim at lunchtime and run in the morning.
I should also congratulate President McMurdo on recently dispelling the belief of some ill informed observers that judges can be narrow minded in their approach. Her Honour in a masterful stroke referred in a recent judgement of the Court of Appeal to a passage from Lewis Carroll’s Alice in Wonderland in the following terms ‘The primary judge considered the case curious. Like Alice’s adventures in Wonderland, this case on appeal became curiouser and curiouser’.
As I said at the outset it is a great honour that I stand here and propose a toast to the judiciary. Nearly all of your Honours were appointed after I commenced practice at the bar.
I’ve appeared against many of your Honours and also had the privilege of being led by some of you. Others are former chamber colleagues and friends.
We live in difficult times. There seems to be a never ending war against drugs and organised crime. Violence against women and the sexual abuse of children occurs far too frequently. There is great pressure on your Honours to put people in jail and throw away the key. There is no lesser burden with respect to the civil jurisdiction. Decisions in those cases can be life changing. As Justice Muir observed in his valedictory speech an adverse finding of credit can ruin a person’s business reputation. Decisions in the Family Court especially those involving children are very difficult.
Your Honours shoulder a huge responsibility that we at the bar do not take lightly. It is our obligation as counsel to assist your honours and in some way to share that burden. You Honours should continue, as you have done, to maintain your independence and provide the community with your considerable wisdom and judgment. On behalf of the bar I propose a toast to the judiciary.
MARK MARTIN QC