Barristers & Judges
It is extremely difficult to lay down the hallmark of successful barristers. They come in all shapes and it’s hard to predict their success or failure. Just before the first war and shortly thereafter many were men of remarkable scholastic attainments and high intellectual quality. Their success at the bar was by no means proportionate to their great ability. On the other hand men achieved success whose good fortune could not have been predicted. It is true that a man who is 6 feet 3 tall and of high intellectual quality usually has a personality which helps him to dominate proceedings, but successful barristers came in all shapes – the long and the short and the tall.
The best man I heard in a court was George Maxwell. He had been called to the bar in the year I was born and be became a member of the federal parliament in 1917 and a K.C. in 1926. He was an exceptional man, in mind and in physical attributes, and his manner of conducting a case rather suggested that one of the old prophets had been given leave and been modernised for professional purposes. His cultivated Scottish brogue, his deep sincerity and his eloquence before a jury, raised him to a high place, and in his particular type of case he could not be surpassed. As a cross-examiner he was no more than moderate but his style and his other qualities enabled him to present himself so powerfully that only a careful listener would be critical of the results. His favourite phrase was, “Gentlemen, the facts speak trumpet-tongued”.
My friend John Cullity and I have sometimes discussed the question of why Mr Maxwell was a wonderful advocate. The finest speech Cullity ever heard in court was at Sale, where Maxwell, late in life, was appearing for a clergyman charged with murder, Cullity was in the court and recalls vividly being splashed by the perspiration that rolled off Maxwell as he spoke, for the weather was hot and sticky, and the afternoon was nearly over.
In those days the court and all its entourage travelled back to Melbourne by train, and Chief Justice Irvine was heard to say privately in the refreshment room at the Warragul station that Maxwell’s speech was the finest he had ever heard in a court.
The remarkable thing is that Maxwell then was blind, and had been blind for seven years. All the material relevant to the case had to be read aloud to him, and in consequence he tended to perform most impressively in cases which were not burdened with detail. Naturally, in court, he had difficulty in directing his eyes and voice towards the jury. A junior who appeared with him in a court whose surroundings were unfamiliar to Maxwell had to keep on turning him towards the jury, but after a few minutes Maxwell would be talking to the gallery, the back seats, or the body of the court. He had, in certain cases, the advantage of not seeing the face of those he was defending. Hugh Macindoe, senior prosecutor and later a judge, used to tell the story of how Maxwell received a very late assignment to appear for a gentleman charged with a particularly unpleasant offence. Maxwell did not meet his client until the day of the trial and even then was spared the sight of a face which was not the accused’s most innocent asset. As Maxwell came up from the cells below the criminal court he crossed the path of Macindoe and promptly greeted him with the cry: “Macindoe, Macindoe, the poor fellow is innocent”.
Maxwell was fortunate in being able to believe in a client whom others doubted. A devout Presbyterian, he was most intense in his beliefs. In John Cullity’s words, he stood out like “a beacon amongst a lot of burned-out candles”.
A retired jockey named McGregor brought an action against The Herald for a not very serious libel, and Maxwell and Stanley Lewis appeared for the newspaper, and I appeared for McGregor. I endeavoured to anticipate Maxwell before the jury; and in my closing speech, with a simulated brogue, I informed the jury that they would be assured, no doubt, by Mr Maxwell in his closing address that the facts spoke “trumpet-tongued”. My imitation of his brogue was probably not very accurate but it was enough to disturb Maxwell. His subsequent address to the jury, good though it was, suffered from his consciousness that the jury had already been warned of the precise phrases he would use and of the manner in which they would be presented. Instead of receiving a paltry £50, as we originally anticipated, the jury gave us £1000.
This case of McGregor v The Herald had a curious aftermath. The Herald appealed against the judgment on the strength of some wretched point of law, and their appeal reached the High Court. The Herald brought in the heavy artillery, and with Clifden Eager and others on their side I realized that the quality of my advocacy on a point of law would not withstand the shots fired by such distinguished and learned antagonists. On the night before the case I persuaded the solicitor and my junior that we should return our briefs. Sensing that in the particular circumstances of the case McGregor might best appear for himself, we instructed him that when appearances were called for next day in the High Court, he should answer, “I appear for myself”. We knew that the Chief Justice, Sir Adrian Knox, had once been the chairman of the Australian Jockey Club and would ensure that the jockey’s case did not suffer through the absence of counsel.
The retired jockey was a very diminutive person indeed. The Chief Justice, having heard Eager and his colleague announce their appearance, peered over to this very small man who was sitting where counsel would normally sit, and enquired whether there was any appearance for the respondent. “Yes”, said our ex-jockey, “If Your Honours please I appear for MEself”. Eager opened at length about the trivial nature of the complaint, the exaggerated amount which had been awarded and the magnitude of the law point which had been wrongly decided. At the conclusion of his opening, Knox, a distinguished patron of the turf, summarised Eager’s argument. “You say, Mr Eager, that this is a trivial libel and that even if the report was defamatory, the compensation of £1000 was quite absurd”, “Yes, Your Honour, that is exactly my point”. Leaning well forward, Knox then pontificated: ‘’May I say, Mr Eager, with respect to your great legal ability, it merely proves your abysmal ignorance of the turf”. And from that time on our forlorn plaintiff was guided through a maze of technical objections. The views which his counsel would have so inadequately put on the subject, were much more trenchantly forcibly argued on his behalf by the Chief Justice. In the result the appeal was dismissed.
For a distinguished career as a criminal advocate at our Bar, John Cullity had no equal. He never indulged in oratory but had a placid, pertinacious way of conducting his cases which won him great esteem from Judges and procured some notable acquittals. A man of high personal integrity, he nevertheless had a universal sympathy and followed the adventures of his clients over the years. I don’t wish to give the impression that he mingled with them on terms of great intimacy; he pursued a very dangerous calling without forfeiting an atom of respect from those for whom he appeared or before whom he appeared.
As he always refused to take “Silk” and was an extremely modest, man, I gave a dinner not so long ago to which I invited a number of the profession with Cullity as the guest of honour. He had no notion that he was to be so honoured and was with difficulty persuaded to dine even as an ordinary guest. We took the opportunity of telling him just how highly his long career at the Bar had commended him to us. He replied in three words; those who know him will not be surprised at this. He was greatly affected by the tribute.
A distinguished equity lawyer of my early years at the Bar was ‘Parson’ Davis, father or Clayton. Parson Davis had a great reputation as a ‘black letter’ lawyer which most of the Bar were in no position to challenge. Similarly Gerald Piggot was also reputed to be a most learned ‘black letter’ lawyer. He was a charming man whose forlorn appearance did not do justice to his kindly heart. My chief recollection of Piggot was his re-iteration to me at every meeting, “I shall never forget the night you carried my bag in Bendigo”.
Leo Cussen, in my opinion, was one of the greatest juniors ever at the Victorian Bar. His career of course, was comparatively short but both physically and mentally he was completely equipped for the role of the ideal junior. Amongst those who, as young men, read with Leo Cussen were O’Bryan, Hudson and Monahan.* Leo Cussen was the uncrowned king of a coterie of barristers and solicitors of which Guy Madden was a member, as was Billy Williams, County Court Judge: they dined and wined regularly at Hosies.
- Those who read with me were J.V. Barry (who was easily the best-read barrister of his time and subsequently the best-read judge) John O’Driscoll, Archie Fraser, and Gordon McArthur.
Gregory and John Latham were very close friends at that particular time and Latham also enlisted and held an influential rank. Latham was looked upon rather suspiciously by the conservatives because of rationalist views, which he took no pains to conceal. Morley was a man of extraordinary quiet generosity and charity who, out of his own not very large resources, did some very kindly things for individuals. For some reason he was not particularly popular with his colleagues.
With Ham my personal relations were very friendly, but he had a sardonic sense of humour and a critical approach which caused him to be feared. A most ingenious Court debater, he never appeared in the Criminal Court and yet he had all the qualities which are said to be common to great criminal advocates. He had a capacity to twist and turn facts beyond recognition, and it was an education to hear him opening an appeal. Even the Judges were a little intimidated by him. Ham had immense courage; his eyesight failed, but with the aid of magnifying glasses he studied every word of the brief and still held big briefs. His great intimate was Owen Dixon. Whereas rumour had it that Sir Leo Cussen* made £7,000 a year when he was at the Bar, and that sum was looked upon as an absolute peak, some said Dixon later attained to that figure. Harry Shelton was a most successful criminal barrister. He was no ‘advocate’ but a most effective man with a jury. Tom Brennan was a most studious man, devoted to his case, and he gained a reputation as a criminal barrister without ever attaining to anything like the greatness of Maxwell who was so distinguished as to have no competitor. Though Maxwell was not a cross-examiner, no one could detect it because his manner and his voice made up for the lack of ingenuity of his cross-examination. In the period of which I am speaking big civil cases were frequent. There has been a tremendous decline in them, possible because law has become too expensive a luxury. Some cases went for sixty or seventy days and ruined all who took part in them, irrespective of the result. The lessons of the cost of litigation seem to have been learned by subsequent generations. Libel cases against newspapers were also very common in those days, even where the defamation was neither obvious nor great. I do not feel that I can do adequate justice to the respective styles of men who appeared regularly or irregularly in big cases in the criminal court of those days. It is not merely a tribute to other days to say that I feel that the quality of the defender was very much higher then than it is today. There is a reason ??????? ½ sentence missing ???????? and thousands of pounds in fees fro barristers engaged in “running down” cases, and there are many barristers today whose names are justly or unjustly unknown to the public but whose incomes far exceed the five-figure mark. They are not tempted to follow the hard way of defending in criminal cases for fees which are absurdly low compared with fees which are readily obtainable for very much easier work.
* The person here referred to later became C.J. of the Supreme Court of Victoria and was not related to the man of that name earlier mentioned.
When I first went to the Bar the Supreme Court Judges were Madden, Hood, Hodges, Cussen, a’Beckett, Irvine and Freddy Mann who was later Chief Justice. Schutt and Jimmy Macfarlan were still practising.
In the Supreme Court, Hood was a terrifying figure to any young man. Soon after my admission E.H. (Bill) Jones, who had been an articled clerk with me in Bendigo, came along with a libel case. It transpired that two men had been taken to the Melbourne Hospital – one a victim of an accident and the second for an attempted suicide – and The Argus reported their admission but accidentally changed the names. Bill’s client, the injured man, then issued a writ because of the Argus’s allegation that he had attempted suicide. The defamation was clear. It was merely a question of how much. Freddy Hann, whose competency at the Bar was universally admitted, was briefed by Blake & Riggall for The Argus. A certain Statue allowed the defendants to publish an apology and pay a sum of money into Court; and this was the course they pursued. In addition, in the document comprising the “Defence”, a “Notice in Mitigation of Damages” was included. I don’t know what caused me to be so energetic but I ransacked digests, dug up various cases, and found one which had decided that a “Notice In Mitigation of Damages” should be the subject of a separate document and could not be included with the Defence. To me it now seems a wretched point. Mann, who was a busy counsel, had not had time to go thoroughly into the matter, so after a couple of hours in the court I was leading on points. An adjournment was granted to the Practice Court on the following day. Overnight Mann went into action and next morning was ready to deliver a scathing criticism of my trumpery technical objection. The Practice Court was crowded when the terrifying Hood gave his decision. He did so very concisely and scathingly, and rejected my submissions. Bill Jones lent over to me and murmured “Ask him for Leave to Appeal”. I duly rose and said “Will Your Honour kindly give me leave to appeal?” The old man glared at me and then really spoke his piece. My ears were very red because my humiliation was witnessed by the crowded Court. Every word spoken by the old gentlemen sounded like a death knell. “It is brought solely that one counsel may vindicate his own opinion against that of another” said Hood. “It has no relevance to merits”.
As I staggered from the Court I was met by J. G. Latham, later Sir John. After sympathising with me on the reception which had been accorded my application, he informed me that Hood’s attack was outrageous; he even suggested that I refer the matter to the Bar Council. I was not long from the country and pretty green, but I had enough sense not to worry the Bar Council with my grievances. Still smarting, I gave notice of appeal to the Full Court, presided over by Sir John Madden, C.J. When the Full Court decided that I was right and quashed their learned brothers decision, I felt about six feet nine inches high.
Hood was a good lawyer and commanded great respect; Hodges, on the other hand, was generally disliked. There appeared to be a streak of meanness in him which alienated affection. A’Beckett, of course, was loved by everyone; but of all the Judges, Sir Leo Cussen was the greatest. Although I have been privileged to travel around the.world many times I have never altered the view which I formed as a young man, a view shared by everyone who knew him, that Sir Leo was one of the world’s great men. He had been an engineer before taking law, his knowledge was encyclopaedic, his modesty was that of a maiden, his atutude to counsel was unfailingly courteous, and his enquiry for any help that counsel could give him was genuine. He did wonderful work in supervising the consolidation of the Statutes, was scurvily treated by Parliament, but lived and dire honoured by all.
Cussen was the greatest Judge I had the good fortune to appear before. His gentleness, his kindness to litigants, his amazing knowledge, his encouragement of counsel – he commanded admiration. He gave to his judicial role everything that could be absorbed into a model, if it were possible to create a model judge. Contemplating the tremendous responsibility attaching to the occupant of a judicial post, I have never been able to understand how any man – except Sir Leo – could undertake the task with other than fear of his inability to measure up to the responsibilities.
McArthur was a charming Judge; he was the father of Sir Gordon who subsequently was President of the Legislative Council. Were I condemned in another life to plead day by day before one Judge I think I would select him. Yet it was McArthur who one day annihilated my submission to a jury.A well-known foundry man had sued in the hope of recovering a large cheque which he had given to my client, a lady licensed victualler. It was a habit of the foundry man to go on big sprees, and on one of those occasions the cheque was signed. In my final address to the jury I referred scathingly to the iron founder as “this man of iron” who now repudiated his liability. McArthur slowly, charmingly and disarmingly went to much trouble to explain to the jury that there were occasions when even an iron founder was not necessarily a man or iron. This was amusing enough. I was not so content when he spread himself on the question of my own client’s decision not to take her place in the witness box. Turning to the jury box he directed the jury’s attention to its architecture, the panels and the gaps between the panels. Then, as only he could do it, suggested to the jury that possibly she had refrained from entering that box because she might possibly have been afraid of the draught. Again for those who wished to know the result, the jury disagreed.
Billy Schutt was everyone’s friend. He liked the social life and he was gentle. His elevation to the Bench in 1919 – a year before McArthur’s elevation- was loudly applauded but he was not particularly happy there. Towards the close of his career he presided over a famous murder trial, and it was said that this ordeal caused him to retire from the Bench. He had means and liked foreign travel. On one occasion I was in a ship in which he was a passenger and amongst those present was one of the world’s most notorious confidence men, James Coates, alias Sonny Foy, and alias this and that. An acquaintance developed between Schutt and Coates, for whom I had acted on important matters on one or two occasions. I felt it my duty to ask Coates to wait on me one day in my cabin. I explained that I was on holidays, that I hoped he was too, and that I viewed his acquaintanceship with Schutt with a jaundiced eye. I had heard some rumours that he proposed to renew the acquaintanceship in the south of France, and I warned him that if there was any interference to His Honour’s detriment, I would see that Coates regretted it to his dying day. Of course, he assured me that he had no ulterior designs. His word was worth nothing but in fact he did attend to my admonition.
Jimmy Macfarlan was a bird of different plumage. When I won that small scholarship at Bendigo at the ripe age of 14, Macfarlan was actually the adjudicator. At this time he was as unknown to me as I was to him. When I came to the Bar I was briefed quickly and frequently as his junior. He was an adroit barrister with a voice verging almost on the falsetto but he knew his onions and was equally successful before Judge or jury. While there was no passion in his presentation of a case, he was extremely skillful.
Charles Lowe, who frequently opposed Macfarlan, was of a different school. Thoroughness was Lowe’s motto. I can still see Jimmy Macfarlan sitting at the Bar table, a sheet of paper in front of him, and dividing a large square into many smaller squares and irascibly erasing each little square as Lowe, slowly and painstakingly, dealt in turn with the various points on cross examination. Macfarlan knew every square would have to be covered before Lowe finished.
Macfarlan and I were very friendly so far as friendliness was possible between a junior of little standing and a senior. I think he thought pretty well of me. But after he went on to the Bench in 1922 he displayed an irascibility which excited the anger of the Bar as a whole. Week after week stories were told of his attacks upon inoffensive counsel, by which I don’t necessarily mean junior counsel; he was catholic in his tastes and made no distinction. Even Billy Lewers, who was a model of gentleness, was not spared. The indignation grew and grew. Despite our previous close association I suffered on one occasion in his court from some criticism or other; and when I protested, Macfarlan withdrew his allegation of rudeness and transferred it to my client. My client got a verdict despite the Judge’s ill-concealed dislike of him. I then protested against the remarks which Macfarlan had made and explained that I was not rude to Judges. He commented, “Not usually”. I repeated, “Not usually, or in this case”. He maintained his position and I left the Court vowing that I would not appear before him again. Nor did I for a very long while. All briefs which figured in his lists were returned by me.
In the end the bar seemed intent on passing a resolution, complaining to the Attorney-General of the Judge’s conduct, and petitioning that he be removed. The debate was adjourned until next afternoon, and I decided to act quickly. About midnight I called at Macfarlan’s horne, after telephoning that I was coming. Admitted by him, I said I wanted to speak to him on a matter of considerable importance. I told him of the stage to which his conduct had brought him. I remember well his reply, “I thought you were a friend of mine”, and my answer “I was and am the last of them”. Anyone who had observed his demeanour in Court would have been astonished at the degree to which he was shaken at the news.
He asked my advice as to what should be done, we agreed to disturb his associate, a very charming man, and urged him to go to town in the morning to lobby certain members of the Bar for their support against the proposed resolution. He obviously did this effectively, because some minor criticism was agreed upon by the bar and forwarded to the Judge himself.
The reformation was not entirely complete, but the Judge’s conduct did greatly improve. I later gave a large dinner for selected members of the Bar at which he was the only Judge present; and we all drank out of a gold loving cup – the Williamstown Cup, which had been won by one of my horses. I resumed practice before him and had no further cause for complaint.
Years later I called to see old Jimmy in his closing days; he lived during his last illness at the Melbourne Club, and he was almost verging on dotage at that time, and his deep worry was: “How can I make this declaration concerning the accuracy of my income tax figures? How can I be sure that what they say in it is true?” So he wandered on and on until, in an endeavour to check him, I said: “You know, Your Honour, when I knew you as a barrister some thirty years ago, I’m not sure you were so concerned then about the quality of the affidavit which the deponent swore as you are now about your own income tax”. The joke was quite beyond him at this stage.
I don’t want to give the wrong picture of Jimmy Macfarlan. He was irascible but a very fine lawyer, and my recollections of him are affectionate despite the interregnum.
Many of my first appearances in the County Court were before Johnny Box. He was then quite old, and although sometimes a little peppery he was always kindly. Woinarski, who had been Crown Prosecutor when I first went to the Bar and was subsequently a County Court Judge, was feared by criminals because of his severity, and counsel were not particularly anxious to have their difficult cases listed before him. He saw it as his duty to aid the conviction of those who, in his opinion, were guilty, and was generous in his congratulations to juries who brought in a “Guilty” verdict. It frequently happened, of course, that the jury said “Not Guilty”. And then the Judge, who did not cease to stroke his beard in emotional moments, would not only refrain from any words of commendation to the jury but sometimes make it clear that had he been a juryman instead of a judge the result would have been different.
Dethridge, uncle of the recently retired Judge Dethridge, had a successful career at the Bar and was an extremely efficient judge. He had an unuaual part in the outcome of the Police Conspiracy case. Certain detectives had been committed for trial on a charge of demanding a large sum from one Terrance Callaghan, on whose premises stolen property was allegedly found. The last of the accused to be tried alone was Detective Leo O’Sullivan. The trial lasted for a day or two, and the jury were out until very late at night. The story then leaked out through a court crier that the jury were eleven to one and that the one man was obdurate. Dethridge interpreted this to mean eleven for an acquittal and one for a conviction. Accordingly he delivered a strong address to the jury pointing out that though every man must decide according to his conscience, fair consideration should be given to the opinion of such an overwhelming majority. Despite this plea the jury remained divided and were locked up for the night. At 10.00 a.m., when the Court was assembled, the jurymen were asked whether they had agreed on their verdict. Their answer was “No” but they said that they expected to agree within fifteen minutes. The Court was packed; the story of eleven to one had circulated.
O’Sullivan’s colleagues were ready to applaud, almost publicly, his acquittal when the jury came in. I have rarely known a more dramatic moment except in murder cases. After the usual inquiry, the Foreman answered “Guilty”. An appeal was lodged to the Court of Criminal Appeal against the Judge’s direction to the jury, but the appeal failed.
Winneke, father of Sir Henry, was a model of courtesy and fairness. There was no such thing as the last word. After counsel for the plaintiff and counsel for the defendant had in turn addressed him, he would allow the plaintiff’s counsel to renew the attack. If opposing counsel thought fit to answer this, he was at liberty to do so. He rather amused the Bar by his manner of addressing the barristers: “Yes, Mr Jones, what have you got to say to Mr Smith’s suggestion? It seems to me a very reasonable one”. And when Mr Jones had finished he would turn to Mr Smith and say, “You know, Mr Smith, there is a lot in what Mr Jones has said. Now do you think that you could help me by any criticism of it?” While the result was that Mr Jones and Mr Smith made three or four addresses, the old gentleman did make a very sincere effort to arrive at the truth, so far as that ideal is humanly possible. Characteristic of him was a short kindly utterance he made in one of the early running-down cases: “Well, Mr Brown, you know Mr Black’s witnesses say that their car entered the intersection doing 25 miles per hour and they seem very, very nice people and I don’t think they would deliberately go into the box and commit perjury. On the other hand those two people you called seem very nice people, too, and they say the car was doing nearer 50 miles per hour and I must say I was impressed the way they gave their evidence. Now here we have two sets of witnesses, all very good people, as far as I can see, and one says the car was doing 25 miles and the other that it was doing 50. Now how do you think I should approach this matter to find what was the approximate speed of the car?” All very simple, you know, all very naive, if you like. Although the judge’s jurisdiction only the County Court, the effect he left upon me was indelible.
It has been the fashion to speak with less regard for Judge Moule, who suffered from the belief that a witness educated at his old school was much more likely to be telling the truth than a less educated witness. Maule was a better than average cricketer and represented State at that game. He was an Old Melburnian of which he was very proud and was seldom seen without his old school tie. A certain barrister was very cruel about poor Moule, calling him “a fountain of injustice perpetually flowing”, but that was after an unsuccessful case. I got on splendidly with Judge Moule. I liked to practise before him, and did not share the rather bitter resentment which less fortunate barristers expressed after some of their experiences, but one required a knowledge of the judge to ensure that one’s client did not suffer an injustice.
My friend, Bob Menzies, has been unkind enough to appropriate the story which in fact happened when I was appearing before Moule. A young man was accused of house breaking. The defence of my client was the not unusual alibi. His 82-year old father desposed that he went to bed at 9 o’clock in a room through which his son had to pass to reach his own bedroom. The father suffered from insomnia and gave evidence that he saw the boy in bed at 10 o’clock. The father also deposed that the son did not leave the house until early the following Friday morning. There was the usual cross-examination of the witness, and hints of the danger of failing memory at 82 years, and finally a straight out suggestion: “You, at 82, surely will agree that your memory is not so good as to make this fine distinction in Thursdays”. The witness drew himself up proudly and said, “Your Honour, my memory is as good today as it was that day at the Melbourne Cricket Ground when, as a young man, you went in fifth wicket down and made 37 not out”. The judge’s summing up to the jury was highly favourable to the accused; and justice was done!
My outstanding recollection of this dear old Judge was in a libel case resulting from the publication of extremely defamatory remarks in a Railways Union journal. The remarks were quite unjustified and there was no possible defence. Archie Fraser, later Judge Fraser, who read with me, was for the plaintiff and I appeared for the Railways Union instructed by Bill Slater, several times Attorney General, and solicitor for the Union. With much difficulty I had convinced my clients that unless they adopted the course I was recommending they would be mulcted in very heavy damages. Fraser opened the case and then, as was the habit of the day, ended by saying: “I ask my learned friend to state his defences”. I rose and said: “Your Honour, in this case there is no defence. My clients wish me merely to express their very deep regret that through some error this defamatory matter was published and to say to the plaintiff, through Your Honour, that they apologise”. I could get no further because the irate Fraser was protesting very vociferously that my sole role was to state my defences. Very deferentially I pointed out to His Honour that I had no right to waste his valuable time or to take up the time of the Court by doing other than surrender immediately. If I had no defence, I explained, it was my duty to say so and to renew my apology. By this time Fraser was almost livid. He kept rising and protesting to Judge Moule against the irregularity. He did this sufficiently often to make the Judge irate. Again I carry away some treasure remarks. “Mr Fraser, sit down. Mr Gorman is acting perfectly properly as I have always known him to do in this Court”. I shall spare myself some blushes by refraining from the other laudatory remarks which came from this very wise Judge. The more Fraser protested the more angry the Judge grew and the more compliments I got. It had to come to an end some time so Fraser sat down whereupon Judge Moule stated that plaintiffs should be well satisfied with a verdict of £5. I am afraid that if Fraser ever reads these lines he will be the sole living dissentient against the compliments which I am prepared to pay to the late Judge Moule.
Sir Isaac Isaacs was one of our greatest lawyers. Born at Beechworth in the first years of the gold rushes, he became a distinguished barrister and federal politician, and was Chief Justice of the High Court when he was appointed Governor General. My only close association with Sir Isaac came when his long public career was over and he was living as a private citizen in Melbourne. His brother John was engaged in a difficult matrimonial dispute with a lady whom he had married late in life. Sir Isaac was most intensely interested in the outcome of the litigation, for he was devoted to his brother and had even been known to adjourn the High Court so that he might visit his brother who supposedly was suffering from nothing more than a severe cold. I had known John Isaacs as an inveterate punter and now I was acting for him in the matrimonial case. Regularly Sir Isaac would visit me and make suggestions about the way his brother’s case should be furthered.
Never have I seen so clearly the impossibility of a man forming a wise and independent judgment on matters closely touching him or those dear to him. One day Sir Isaac arrived with the draft of a long letter he had written. To my astonishment the letter was full of grossly libellous statements and to my further astonishment I was urged to send this letter to the opposing solicitor. I evaded the request by thanking old Sir Isaac and telling him that I would take the draft letter home and work on it. I eliminated nearly all the matter which he had inserted, reduced a voluminous document to one of a few lines, and through our instructing solicitor the amended letter was sent off’.
We are no longer rich in great Judges. We have a number of quite capable gentlemen on our Benches, but the number of Judges necessitated by today’s demands is very high; obviously the really distinguished men available are not quite numerous enough.
I have never appreciated the argument that Judges should be deprived of their wigs and robes. It is usually advanced by individuals blissfully ignorant of the history and tradition of the law and incapable of’ appreciating that the law should present itself with great formality. Without the formality there is a risk of our Judges being treated by those who appear before them as though they were merely subordinate members of a bureaucracy. Some critics go so far as to urge that the Judge should not sit on an elevated Bench but should descend and make it clear to all those in Court that he is really one of the boys.
It is amusing to observe sometimes the quick decline from the high principles enunciated by a new judge when he is returning thanks to the Bar’s congratulations. For a few months an effort is made by the new judge to conform to those standards of courtesy about which he felt so deeply when practicing as a barrister, but the corroding result of power can manifest itself rather quickly. And so an application for an adjournment eventually excites great judicial ire, with the judge uttering the usual cliches about ‘public money’ and ‘public convenience’, in complete forgetfulness that he is there to serve the public convenience.
When, after the second war, I came back and announced that I would never again go into Court, I thereby had the best of both worlds, for I was still surrounded by barristers and Judges, knew what was happening in the law, and was regailed with legal gossip. I heard how outrageously Judge X had performed when sitting in the Full Court on appeal against a decision of his brother Judge Y, and I sometimes from Judge X how sure he was that Judge Y would be similarly attentive when he sat in judgment on the Court. I do not wish to convey the impression that Judges spend their time getting square on each other; I merely want to explain that Judges are just as human as jockeys. When a jockey is badly interfered with during the running race and suspects that the offence was more or less deliberate, he is sometimes prepared on a later occasion not to turn the other cheek but to pull the other rein. Nothing that I have rean on about some of the great British jurists causes me to think that they were any less human in their frailties.
By and large Judges do a fine job. Prior to 1700 cases of corruption were fairly frequent because the Judge was more or less paid by fees; whether it was a cash payment or a bit of venison, all offerings were gratefully received. Nowadays the suggestion that a Judge had been bribed would be treated not with anger but almost with amusement.
It has been the fashion to sneer at Judge Bridlegoose and his explanations of finding for plaintiff or defendant according to the roll of the dice. Statistically, I suppose, his decisions would be at least 50% right, which is not a bad average. The trouble was that before coming to a decision he apparently compelled the litigants to a long hearing. If the dice had been shaken early, much more could have been said for his mode of decision on the ground that it made litigation less expensive.
Consenting to Become a Judge
It is almost conventional when a member of the Bar accepts judicial appointment to hear a great deal about the financial sacrifice that he is making. It is probably true that many years ago when judicial salaries and pensions, were much lower than they are now, that a new Judge did find a substantial diminution of income. But now with income tax at its present high rates on big earnings, increased judicial salaries, generous pensions for the Judge if he lives long enough to retire and reasonable provision for his widow if he does not, there is not much occasion for lamentation when a barrister exchanges the strenuous life of the Bar for the more leisurely one of the Bench.
In addition he achieves status and possibly, if the appointment is to a higher court, a knighthood with a bit of luck, free chambers and staff, and generous provision of motor transport without even a worry about where to park the car. In my opinion a gentleman who accepts a judicial appointment is making a pretty good bargain in the long term and this applies particularly to the County Court. No man has to be tortured to compel his acceptance of any judicial appointment, although I suppose it’s nice for him and his family to feel that by accepting the job he has performed a great public service at some sacrifice to himself. Wharf labourers may strike as may tram conducters but I don’t think that any of us will live long enough to hear of an organised Bar movement to protest that elevation to the judiciary is virtually a form of slavery.
I would dislike being classed as a debunker, but I have never been able to worship blindly the occupants of high positions. Experience has taught me how often their feet are clay. I am not prepared to accept the judgment of history on all occupants of the judicial bench without making some examination of their personal merits. Collecting anecdotes of Judges of long ago, I found many instances of their dishonesty or their sacrifice of principle when political expediency enabled them to exchange their ephemeral roles of politicans for that of a Lord Chancellor or a Chief Justice. I am not a severe critic of the judiciary, but whenever I have a chance of speaking to younger members of the law I exhort them not to take as necessarily accurate the absurd eulogies which were pronounced on many Judges when Providence had called them to their final reward.
Campbell, whose Lives of the Chancellors, allegedly, added fresh terrors to death, is perhaps not always a reliable witness but he is a fertile source of anecdotes. I particularly like to record some of the performances of the House of Lords, in which not one moment’s thought had been given to the subject matter. Lord Winford, for example, presiding in the House of Lords in 1830, ordered that a new trial take place in Scotland before a special jury and that both parties be examined viva voce. Unfortunately there was no special jury in Scotland, and both the parties were dead.
Perhaps the most illiterate Judge ever to reach the Bench, although a powerful advocate, was Garrow. Once when passing a death sentence, he used these words, “Prisoner at the Bar, you will ere long appear before another and all-merclful judge who will hear with patience all you have to say; and should he feel a doubt, will give it in your favour”.
The sardonic Bethell, at one time the Solicitor General in Britain and later Lord Westbury, once delivered judgment against trustees in these words: “Had they taken the most elementary precautions, and employed a firm of reputable solicitors, had they taken an opinion of a member of the Bar, they would have avoided their error”. My lord, said counsel, “there is a paper here which I am unwilling to read in open court but I would beg to submit to your Lordship”, he then handed to Bethell a paper recording Bethell’s own earlier opinion on the case. Not to be disturbed, Bethell answered: “It is a mystery to me how the gentleman capable of penning such an opinion can have risen to the eminence which he has now the honour to enjoy”.
Fletcher-Moulton, who was proverbially discourteous to the Bench, was once addressing the Court on the subject of manorial rights. My Lord, he said, “I can illustrate the matter in my own person. I myself have two little manors. “We all have good reason to know that, Sir Fletcher”, said Lord Mansfield.
Of course it is notorious that in the bad old days, as we now regard them, judges at times were extraordinarily discourteous and extremely severe on counsel, but they appear to have given counsel much more liberty to retort than is now customary. This is best illustrated by one of the world’s two greatest advocates, Curran, who was addressing an Irish judge when suddenly two donkeys breyed outside. “One at a time”, said the Judge, “one at a time”. The donkeys breyed again. “I am sorry my Lord”, said Curran, “but there is such an echo that I can scarcely make out what you are saying”.
For years I have encountered a saying – attributed variously to Bob Menzies and me – that “no man could ever be so wise as Charles Lowe looked”. The story is, in fact, a very ancient one. I have traced it back for generations. If a searcher went back far enough he would find that it originated in Rome and Athens. Certainly it was said of Thurlow that no one ever was so wise as Thurlow looked. Despite his wise appearance Thurlow had a friend, a barmaid Amanda, by whom he had two daughters to whom he left large fortunes.
It was, of course, common knowledge at the Bar that all members of a Court of Appeal were not always fraternal in their thinking or at times particularly well disposed towards each other. Probably the best story to illustrate this relates to Coleridge, Lord Chief Justice, and a colleague on the Bench when news of a new appointment was handed to them. He was very obnoxious to them and the colleague expressed himself in very strong language. The Lord Chief Justice waited until he had finished and then with grave face and in his usual measured tones said, “I am not addicted to expressions of that kind myself – but would you mind saying it over again?”
I like too the story of the prisoner who was observed by Hawkins to speak to a warder. Promptly Hawkins ordered the warder to repeat the conversation, not realizing that the prisoner was talking about Hawkins. This is what the warder repeated: “Who is that moth-eaten old beaver? I have often seen him hanging around the racecourse”.