Was It Worthwhile?
When one reaches my age I suppose it is inevitable that he should be tempted to succumb to answering “No” to the inevitable question, “Was it all worthwhile?”. Strange to say I seem to have been able to avoid this negative answer somewhat better than men of much higher intellectual qualities. Sir Owen Dixon, whose name stands well above that of most Australian lawyers of the last years, said in conversation with me after his retirement, meaning every word of it, “Thirty five wasted years”. I do not accept Dixon’s view of his own life work but it does suggest an anxiety about the law and the way it is practised.
A tremendous amount of our litigation is concerned with running down cases which drag on before a jury, hour by hour and day by day. There, competent counsel indulge in their legalisms, respectfully submit that the jury be sent out whilst they make some plea or other to the presiding judge, and preserve the fiction that it is litigation between A and B whereas everyone knows it is between A’s and B’s Insurance Company. Some say the fault is that of’ counsel, some say it is the fault of the system, others say that it is because judges are not learned and strong counsel’s two hour harangue on a minor matter is fiercely resented, and the counsel will promptly claim that he had no opportunity of doing justice to his client’s case. I don’t know the answer. And I suggest from Owen Dixon’s remarks that he, despite his learning, didn’t find the answer either.
I reflect on some of the points I took and some of the rather petty things I did as a barrister. I can’t say that I am ashamed of them – I had to do my best for my client – but they seem petty and trumpery to me now. My little triumphs and my alleged “tactics” which invoked some interest at the time and which are still remembered, now appear to me to be behaviour of which one has no particular reason to feel proud. What are we to do about it? I can’t say. Every man is entitled to his trial. In the criminal court he certainly gets that fair trial by and large. Compared to the old wicked days of the late 18th Century, the accused’s interests are looked after with meticulous care.
The course I followed for some years, while I remained in practice, was to say to my clients – “Now this case will last seven days, or ten days. It will involve a lot of costs. Possibly one of you will have a clear win; possibly neither of you will have a clear win. If you win you have still got to get the proceeds of your verdict”. Some clients fought very hard to resist a settlement pointing out that they didn’t mind the law getting the cash providing Mary, or Lizzie or Brother John didn’t get it. But I can’t recollect any case when in the end I failed persuade my client to agree to a reasonable settlement, although not always was that settlement obtainable. In my chambers I have photographs of horses with which I had won races, and when all else failed I would take the litigant and show him the photograph of John Wilkes, Charles Fox and all the other equine heroes that I had owned. The litigant speedily became bored, as I expected him to. Then I explained that my father was a man of very moderate means, through whose efforts I was able to become a barrister. I explained that none of the money he never possessed went towards the purchase of these horses. The horses were bought with fees paid to me by clients, either brought unwillingly to the criminal court, or going willingly to the civil courts and jury cases. I finally pointed out, “Now I have another horse in view. It will cost a few hundred pounds and I think the costs in this case will provide sufficient money. If you care to go on I’ll be paid irrespective of the result, and if you like I’ll communicate with you later and ask you to name the horse”. It’s surprising how often it worked. A very small piece of wood was presented to me by someone on some forgotten occasion. It was worth fully one shilling but for some reason I hung it up in my waiting room. It carried the words: “Nothing matters half as much as you think it does”. Whilst my secretary was busily explaining to clients that I was detained elsewhere – sometimes on most unworthy pursuits – the clients would read this maxim; and time and time again I have heard them say, “You know, reading those words has had a curiously pacifying effect on me”. I took particular care to see that the inscribed piece of wood was never removed, even though it was not very artistic.
In settlements it must be admitted that neither side goes away completely satisfied. The man who has paid £1,500 says or thinks that if only he had held out a little longer they would have taken £1,000. The side which has received the £1,500 says if we had only stuck out a little longer he would have paid us £2,000. Only in rare cases is your client completely satisfied. You then have to fall back on the consolation that you have made him act wisely, saved him trouble and money, and saved possibly his wife and children the throes of going into the witness box to be cross-examined.
How different might have been the fate of various individuals, including Sir Charles Dilke and Oscar Wilde, had their legal representatives advised them differently. It sounds impertinent but in both cases in my opinion good advice could have saved the client. After Sir Charles Dilke had emerged, admittedly with a few stains but still “unconvicted”, from the divorce case in which he was cited as co-respondent, he dissipated vast sums of money on litigation which eventually resulted in a Court finding that the Attorney General had a right to intervene. The correctness of the legal decision is arguable, but Dilke succeeded in establishing the A-G’s right to intervene. Dilke was, of course, provoked by comments from Stead but it was a Pyrrhic victory. Dilke had no right of representation on the new hearing. An Admiralty lawyer was employed by the A-G – a most happy choice – the case was tried before a jury, the onus was on the A-G to prove that the prior decision was wrong, and the errant wife whose admissions had been sufficient on the first case for her husband to succeed but were inadmissible evidence against Dilke who now entered the witness box. She provided England and Europe with some very luscious details indeed concerning her relationship with Dilke and of some amorous engagements during which Dilke’s housekeeper was also present. One cannot but reflect that a wordly man, armed with a little legal knowledge, might very well have taken Dilke into a corner and said, “Dilke, you have been very lucky; you cannot back yourself to win again. Take one of your famous world tours, get out of England for six months, allow this thing to die down and then resume your normal life”. The result, of course, was fatal. Dilke made an exit from the House of Commons, instead of becoming the leader of the Liberal Party after Gladstone, and although he did return later on, his career was for practical purposes, ruined.
Then we come to Oscar Wilde. I again apologise for daring to comment on the advice he received. I wasn’t present. He may have had good advice and disregarded it, but if counsel is strong enough he can usually make his point, even against a reluctant client, if he, counsel, is convinced that a certain course of action will be fatal to the client’s interests. Had Sonenberg, our late well known solicitor, been consulted by Wilde, I can imagine the conversation. He would have shut the door, sat Wilde down and said something like this –
“Wilde, do you think I know nothing of London? Do you think I am so ignorant as not to be aware of the stories that are circulating concerning you, your habits and your doings. You will not bring a libel case. I am not going to allow you to commit social suicide. I am arranging for a ticket to France which will be available within 48 hours. Get out of England. Stay out of England. Forget that the Queensberrys exist. I advise you to abandon some of your peculiar practices but if you are going to continue to indulge them let your practice be transferred from England to France. Good morning, Mr Wilde, I am not going to issue a writ for you and I beg of you to heed my advice and do not consult any other legal adviser with a view to taking contrary action”.
Sonenberg was not in England and the result is known to you all.
I have already commented on the various methods to which I had to resort in order to compel settlements when I knew that to proceed with an action or to fail to accept a sum offered would have been disastrous to the person concerned. I cannot recall any in which I failed to have my way although I do not claim that my clients all departed satisfied. I, however, was convinced that I had conferred a greater boon on them than they were able to appreciate. It follows from what I have said that I regard a successful barrister’s mission not as designed to achieve glorious victories (which his biographer will later embody in a book) but rather to bring about the termination of litigation at the earliest possible date, provided always that a reasonable settlement is available to his clients. It is easier for a barrister to acquire a reputation than it is for a jockey. In most cases there are only two parties. Some people, claim a very high percentage of cases would be decided as they are irrespective of who appeared: This may be so but were I a litigant I would like to have a competent counsel. However, if a barrister happens to be connected with a case which lasts for an inordinate time or attracts particular public attention the successful result, if successful it be, seems to be invariably attributed to him and his name floats heavenwards as a great advocate.
The strain of litigation is pretty serious for womenfolk and sometimes on men, I personally would pay a lot of money to avoid having to go into that box and provide the gentleman down below with material on which he could cross-examine me concerning certain events in my life.
The question – was it all worthwhile – can be viewed from a variety of angles. I have many times contemplated the question when observing people who have acquired large sums of hot money. During the black market days which followed the Second World War, many commodities were scarce or almost unprocurable and others were rationed; and a black market flourished. Those who had acquired big sums of money on the black market had no desire to bank it or to spend it conspicuously, and accordingly they devised various means for stowing it away. Sometimes, their business associates, not all being the most trustworthy men, engaged in breaking and entering in order to take over the hidden money. On such occasions the losers rarely admitted the total loss to the Police. A public declaration that they possessed so much money in cash would have almost certainly precipitated the Income Tax investigation which originally caused them to hoard. One man put his money behind some wainscoating where he left it for a couple of years. And when the time came to retrieve it he found only fragments of notes; the remainder had been devoured by rats.
A well known Sydney sporting man, now dead, was a large racecourse supporter and buried very substantial sums on a little property which he owned. When he finally went to retrieve his money, neither he nor his close friend were able to decide under what tree they had buried the cash. During the next few weeks they engaged in more physical labour than they had ever previously undertaken in their life. After practically ploughing up all the land, they did come upon their cache.
Through my professional and racecourse contacts I came to hear many stories of black-market money. I remember one man, whom I had once defended on a criminal charge. He prospered, became the proprietor of substantial Melbourne businesses (which I will not identify) and had many, many thousands of pounds in notes, on which tax had not been paid. I am not exaggerating when I say that it ruined his life. He had a nice home in a fashionable part of Melbourne but was afraid to leave his place of business in the city even during the week-end. His was the most remarkable case, in my knowledge, of a man becoming a prisoner of his own money.
I have known of big sums stowed away but the money rarely added anything to the happiness of the owners. They were afraid to spend it, because the efficient Income Tax administration closed up all the loop holes. There was one man whom I liked because of his many good qualities. He had, years before, been concerned in a controversy with the income tax people, and he came to dislike them very much. He subsequently became the owner of many thousands of pounds. This money was moved occasionally from place to place but one day he asked me what I thought he should do with it. Quite seriously I told him that if I could change places with him, own what he held legitimately, plus the black-market money, I would take it down to an incinerator and set fire to it. He did not take my advice but I still think he would have been happier had ho done so.
None of us likes paying income tax any more than we like paying customs duty on a bottle of whisky; but my lifetime experience is that a man who deliberately sets out to evade payment of tax on any substantial scale is more foolish than a litigant who is his own lawyer. The more successful his endeavours the greater his peril. In my early days I prosecuted for the Income Tax Department and later on I had to hear from solicitors and their clients stories of large sums of money on which tax had not been paid. If the owner succeeds in avoiding tax for fifteen or twenty years, the destruction of his estate is almost certain if his misdeeds are discovered.
I was the executor of a sporting man who left nominally about £30,000. He had won substantially at racing over the years, had invested his racecourse winnings and had paid tax on all his investment income. He did not disclose or pay tax on his winnings and quite sincerely did not believe that he was bound to do so. After his death the Department claimed that he was a professional backer of horses and should have disclosed his gains annually. He had a very large family indeed to be provided for, but the tax and penalties imposed by the Department came to considerably more than the total value of his estate; and when I enquired from the Department whether it would be prepared to accept my personal cheque for the balance, they very quickly said they would. I confess that their answer did not surprise me but I retorted that I really had not considered that solution.
I launched an appeal on the ground of hardship and generally did everything I could to retain possession of the income for the support of the children, but after some years a stage was reached when I was notified that my appeal must go on. I had loudly proclaimed that I would appear personally and argue out the question of professional punting, but in fact had no real desire to do so. In the last resort I caused notices to be given to the First Commissioner and the Deputy Commissioner for Taxation, commending them to attend for cross-examination. As intelligent men, they had no desire to be cross-examined. They had no idea on what they would be examined and I’m afraid my own ideas were not very clear. Fortunately the Department suggested that possibly a settlement might be arrived at by us, and we did manage to retain a reasonable amount of the estate.
This seemed to me to be an exceptionally hard case. The Department did not move when the man was alive. When he was dead, he was in no position to submit his views on how he backed horses, why he backed them, or do anything to negative the Department’s contention.
It is not for me to advocate immorality in financial matters, but I have often wondered why those whose consciences were not tender and who had accumulated some fifty or sixty thousands, did not in their later years, pay income tax in four, five or six thousand pounds as racing winnings, or other earnings, even though they had not gained the money. It is true that a substantial part of the money returned would be payable as tax, over say ten years, but they would be left with a reasonable residue which would be clean. If I am told that this is immoral, I confess that I know it, but there is not much harm done because in practically every case I have found that the possessors of the money are anxious to retain the whole sum. The prospect of paying tax and retaining a substantial amount of white money makes no appeal to them whatsoever.
The same problem, whether it is all worthwhile, applies to many charitable organisations. I have been for many years the President of the Opportunity Youth Clubs which work in industrial areas and do a pretty good job amongst young people. I feel we have helped many thousands of young people to become what we all are, average citizens. Then I listen, as I did this morning, to the transistor at my bed telling me the events of last night, a Saturday night. Deaths, car collisions, one young gentleman drawing a revolver and shooting, and other stories of young people garrotting an old man and an eye witness explaining “we didn’t go near to give a hand – we’ve got enough trouble up our way now”. And so we wonder whether efforts for the public good produce as much as we hope that they would. We wonder sometimes how society continues to function at all in the face. of the powerful forces of evil, carelessness, indifference and the attitude of the frustrated – that large army of the frustrated – who feel they should occupy high places and that the world would then run better. I hear night by night of damage by vandals and I ask myself is this veneer which is over us so brittle, so easily broken? Are we all savages underneath? I really don’t know. I have visited concentration camps established by the Nazis. I was in Moscow a month or so ago – I should have more sense at my age than to be roaming around the world – and I saw the product of the half century since the Glorious Revolution: no abject poverty, everyone clad, but so drab, so utterly drab.
Going with no bias, simply as an observer, I realised that all these people were much better off then they had been under the Tzar when most of their fathers were serfs, and yet I thought how little has been produced for such terrific cost in human life and suffering.
Even in the West the aristocracy has lost its privileges. Lesser men and institutions are now the targets. All who wield even minor authority are on the defensive, being assailed by minor journalists acting as self-elected protectors of the general public. We live in an age of revolt and protest, with immature University students in the vanguard. I avoid the common error of believing that this is happening for the first time. Even a casual reader of history knows that many eras of protest have come and gone, but even casual readers of history are in a small minority. Conservatives and the aged are irate at the sight. The sight does not anger me, though occasionally I am irritated temporarily by an exceptional display of human stupidity.
I accept that one should feel an almost universal pity for humans merely because of their humanity. Occasionally one has to count ten to avoid relapsing from this generosity. The evil and the frustrated can be very trying. I prefer evolution to revolution, naturally. I am no longer a young man in a hurry. Destruction is dreadfully easy. I remember at College underlining Francis Bacon’s words “It is good that men in their innovations would (innovate) quietly and by degrees scarce to be perceived”. I suppose it’s true that greater material rewards for most have been reflected in their greater happiness, but counsel for the contrary proposition could doubtless dig up some interesting material in support of his plea. I remember reading years ago that the inevitable end of democracy is mob rule. Let us hope that the writer was a pessimist.
The Victorian Police Strike of 1923 made an indelible impression on me. Without warning or provocation, thousands swarmed into the streets, breaking shop windows and looting the goods on display. I emphasise “without provocation”. There was no industrial unrest or serious unemployment. The only incentive was a knowledge that no police were on duty. I then realized that a Louis XVI or a Marie Antoinette were not indispensable for a revolution. The behaviour of “His Majesty The Sovereign People” was not exemplary. At times like these, intelligent men decide to keep a dog.
Those of us who looked forward with keen anticipation to the Welfare State did not foresee that for its smooth working an enormous armies of bureaucrats would have to be created. In fact for men of not too ambitious minds the life of the bureaucrat now is probably the one to choose. In the old days men in Public Service were poorly remunerated, just as Members of Parliament originally worked for nothing and, later, for very little. Now Parliamentary representatives receive enormous sums. Those in charge of Government Departments are extremely well paid, are guaranteed large retiring allowances, enjoy great privileges during their lifetime and should they attain to the heads of departments can almost be assured of a Knighthood. What more could a man want: money, power, security and the status of a Knighthood. The only thing which most of us have failed to achieve is contentment. To suggest that they attain happiness would be merely to suggest the farcical.
One sometimes asks the question, was it worthwhile, when chewing over the actions spurred by good intentions. We all have had occasions to regret our well-meant interference with our neighbour’s affairs. I confess that many times I resolved not to offer any advice or interpose in matters where I thought that some good might result. I am afraid the resolution has been broken nearly as often as it was made.
I had a close friend of great integrity, which did not prevent him knowing and being charitably disposed towards some of the bright boys who cut corners. They thought well of him, one of them presented him with a most attractive and extremely valuable vase, my friend showed the vase to admiring visitors and even displayed it one of his rooms where it attracted much attention.
He rushed to my chambers one morning in a state of consternation and produced an advertisement from a well known importing house. The advertisement described the vase in question which, it said, had recently been stolen from the wharves, and offered a large reward for anyone producing information relating to its disappearance. My friend was so concerned that he considered depositing the vase in the Yarra or the Albert Park Lake but on reflection decided not to do so until he had spoken to me. I strongly counseled against his giving effect to his original intention, pointing out that the vase was obviously valuable and that he had no right to dispossess the true owner of it, I asked him to leave the matter to me.
I sent for a well known solicitor, a close personal friend, and gave him only the bare facts of the case – not, of course, mentioning any names. I requested him to write to the firm in question saying that a client had come into possession of the missing article, that it had been given to him as a present and accepted by him without suspicion that it was stolen.
The letter went on to say that the vase was then in the solicitor’s office and available on demand. I authorised the solicitor, if pressed for the name of his instructing client, to say that the letter had been written under my instructions. Then the turmoil started. The firm reported what had happened to the Police Force. I was visited by detectives who pressed me strongly for the name of the gentleman who had become possessed of the vase. I explained shortly and firmly that I had no intention of meeting their request and that the firm, instead of pressing me for such information, should be grateful to me for having brought about the restoration of their missing property. Police sought the advice of the Crown Solicitor who came to see me. I repeated what I had already said: that no power in the world or any threat of action would move me. The matter, of course, went no further, but I feel that the Police saw me as rather a doubtful character because I declined to assist them further in their investigations. For some time afterwards I kept my resolution to let people work out their own problems without my embarrassing interference.
I have often found the same principle applying in cases and I am pleased to say they are numerous – in which I gave my professional services for nothing. The beneficiary frequently appeared to assume that, because I was not receiving any fee, my interest was somewhat the less. When, as sometimes happened, I had to report my inability to give any further assistance, I found that I had too often made a very dissatisfied friend or acquaintance. I understand that a Hindu sect teaches that one should do good deeds, not only without expecting gratitude but running away if gratitude should actually be expressed towards them. It’s a very wise rule. I am not suggesting that all those who benefit from kindly action are resentful, although most borrowers of money are.
There are, of course, exceptions. For one of my old friends I did nothing more than provide a reasonable quantity of whisky when it was severely rationed. I don’t think I ever did anything of a major nature to assist him, but when he died he left me one-tenth estate. To conclude the story I may say I did not retain it but gave it to someone to whom I felt I myself was under a heavy obligation.
It is strange that I should be on this theme today – l0 September 1966 – because at the Club at lunch time I was reminded of the birthday of an old friend of mine, a Chinese, Billy Mong, of Ballarat, who today is 84. Some forty years ago I appeared for him in connection with a matter which in no way reflected on his integrity. As a matter of fact it related to some gaming on his premises. The case did not look promising but I was attracted by Mong and fought it very hard to a successful conclusion. For the last forty years he has never forgotten, and in addition to presenting me with a small nugget of Ballarat gold he every Christmas makes it his business to send me duck or a turkey. I have cherished his generous friendship very much indeed.
I have not lent a lot of money but I have at times yielded to the requests of someone who claimed to be in urgent need. The results have been no more satisfactory than Shakespeare predicted. The lending of money appears to create a sense of obligation and resentment in the borrower – I don’t know why – and even when the loan is returned the borrower does not appear to be very grateful. To those who persist in doing good deeds I offer a suggestion. Never guarantee the current account for any friend unless you first of all completely understand that there is a chance that you may one day be called upon to pay it in full. If you do decide to guarantee, you should also arrange with the bank to open a No. 2 account in the borrower’s name and make arrangements for the Bank to deduct £2, £5 or £10 per month from his ordinary account and credit it to the No. 2 account. The advantage of this is that many borrowers make temporary reductions in their overdraft and then under pressure relapse to their final dismal state, namely right up to the margin which the Bank will allow, whereas if a No. 2 account is opened there is at least some chance of some payments being made which cannot subsequently be withdrawn. It’s a trip worth taking and sometimes I have found that it worked.
In justice to humanity I have to add that I have over the years received many effusive grateful letters, sometimes of a congratulatory nature, from individuals whose names I occasionally have not remembered. Even when I did remember them I have had no recollection of the little service to which they had so gratefully referred. So there is no l ne to follow. Each individual must make up his own mind as to how much he values money and how far he is prepared to disregard experience.
One of the most difficult tasks is to sit down and write a sympathy letter to our friends who have lost a wife, husband or family friend. I am well aware that there are individuals who revel, seemingly, on such occasions and write what are frequently described as “beautiful” letters. I have never been addicted to these. I have always felt embarrassed. Often I concluded, having read some of the “beautiful” letters, that the writer was seeking to convey that he was more in need of sympathy than the recipient of his letter. The only solution I have ever found was to write a few lines and to say, “Dear friend, I am very grieved at what has happened. I can do no more than metaphorically shake hands with you and offer the sympathy of a friend”.
On the other hand I have listened with undiluted boredom to the speeches made at weddings and have long since come to the conclusion that attending a funeral is at least a more satisfactory occasion than being a speaker at a wedding. At weddings one frequently hears lamentations about the regretted absence of Uncle Willie or Auntie Mary who have been dead for thirty years, interspersed with copious optimistic statements that had they only lived to be present their enjoyment would have been complete. Sometimes I think that the uncle or aunt would often prefer to be left undisturbed even had it been possible to disinter them for the occasion.
Was it all worthwhile? If I were to answer “no” I would not be writing these pages. Much that was really worthwhile did not seem so at the time, and much which seemed worthwhile at the time has lost most of its value or appeal. So many people and scenes and moments come to mind: some embarrassing, some frivolous, sad, humbling or proud. There come to mind the death of the draught horses on the poor farm of my uncles – men who could not afford to lose even a bag of chaff and the rather expensive days I spent at cards at the Portland Club in London half a century later. The quirks of a career come to mind: how as a young man I left Bendigo to avoid the handling of other people’s money and how I subsequently became, reluctantly, the executor of very large deceased estates. Snatches of scenes appear: how on an early visit to California we managed to secure seats in the vast temple of the evangelist Amy Semple McPherson and the real price we paid when, before that vast crowd, we were asked as visitors from a foreign land to rise and do our stuff. I remember one evening during the Second World War – a Christmas Eve in Palestine – when we journeyed from the commanding officer’s cocktail party in Gaza to the holy place in Bethlehem and how the tremendous crowd barring the entrance cleared a route on hearing the announcement: “We have come from General Blarney’s party”. I do not forget my three private interviews with the Pope but I almost forget that those interviews were not based on my religious performances. My mind fixes for an instant on the months we spent early in the …. Thats's where it ends..