10 Minutes with…the Honourable Ian Callinan AC

Ian, thanks for speaking to Hearsay.

Prior to this interview, you read my introduction to readers. Many would ask the question: How has a busy professional barrister, and subsequently judge, found time to fit so much into their life?

I would make two responses to that. I’ve always thought that to be a better professional one needs to have interests as well as friends outside of the profession. I also think that the due allocation of time is important. I have to say that I have known some one-dimensional lawyers who might have been happier had they ventured outside their profession more often.

Of the endeavours in which you have engaged in your long life, is there any particular one which is your most fond achievement?

Naturally, I was excited, and I hope, dually humble on my appointment to the High Court. On my retirement I had thought that my professional life was effectively over, but things didn’t turn out that way. In fact, my post-judicial life has been as interesting and fulfilling as my time on the Court. It was an unusual privilege to serve as a judge, albeit an ad hoc one, on the International Court of Justice and to be asked to mediate, arbitrate and give expert opinions in matters all over Australia and in London, New Delhi, Chicago, New York, Singapore and Prague.

I don’t know whether I would describe it as a fond achievement, but it was, I think, a unique one to appear robed in a Spanish court in the Majorca when I was at the Bar. In response to my question to the Chief Crown Prosecutor of Spain, who was conducting the extradition proceedings for the return of Christopher Skase to Australia for trial, “how could I do that?” He said that he wanted me robed to assist him and to show to the court how seriously Australia took the matter. He said he would introduce me to the court. One of Skase’s counsels spent about half an hour objecting to the introduction, but the court received it.

Next year marks the sixtieth anniversary of your admission as a barrister. What ought be the core aspiration of any counsel in an endeavour to succeed in their craft?

Some aspirations go without saying, to do the job properly and to rise in the profession, which does offer, for some, a career path. To aspire to be a judge is an entirely legitimate aspiration. Barristers, however, like any other professionals, need to have proper moorings and enough insight to know their limitations and to understand that luck and chance in life will inevitably play a part. I have seen some unhappy barristers whose aspirations have turned to expectation, entitlement even, which has never been realised. I have no doubt that for every appointment made to a court, including my own, there would have been many other able lawyers fit for the position. Indeed, the dictionary of the High Court has a section devoted to lawyers who might well have been, but have missed out on becoming Judges of the Court.

What challenges in practice confront the Bar in contrast with your time in practice before appointment?

I think that it is more difficult for young barristers now than it was when I started at the Bar in 1965. Prosperity in Queensland was very much on the rise. The District Court had been re-established some eight-or-so years before and a new Planning Court was soon busy with development applications for housing estates, resorts, mines, and other projects. The Bar was a much smaller Bar. Barristers saw much more of one another daily because 80% or so had their chambers in the same building where an open-door policy prevailed.

The Bar today is much more numerous and dispersed. Much of the opinion work that was available is now done in solicitors’ offices. Offsetting some of these disadvantages is the creation of new Courts such as the Family Court, the Federal Circuit Court, the administrative tribunals, and the Federal Court itself which only came into existence at the end of the seventies. One further observation that I would make is that, because practice areas are highly specialised in solicitor’s firms, it has become necessary for there to be more specialisation at the Bar. I was fortunate, I think, in being part of what was probably the last generation of barristers with a general practice.

I have an impression that the entry into and maintenance of a practice at the Bar today is more expensive than it was, but I wonder whether in the digital age it will be necessary for barristers to have individual chambers at all.

How have the increased trial duration in and expense of litigation resonated in conduct of the justice system?

I’m not too sure about the premise of the question. I can recall some very long trials when I was in practice. For example, the prosecution of the white-collar criminals in the Bottom of the Harbour Case lasted about five months before a jury. I did a gas price arbitration in Adelaide that involved five months of preparation and five months of hearing. I also recall a defamation trial with a jury in Brisbane that lasted thirteen weeks and was, at the time, the longest defamation trial, I think, in Australia. When I started at the Bar, a Royal Commission into the drilling for oil in the vicinity of the Barrier Reef had been going for some time and continued, I think, for about two years.

What I have noticed is that there is a great deal more time spent in case management hearings, that is to say, interlocutory hearings, than in the past. This has involved a cost-transfer from the trial to multiple pre-trial hearings.

Is “open justice” under threat in contemporary statutory and security mores?

I think this is a difficult question to answer. I have noticed an internecine controversy in the Federal Court with Justice Michael Lee saying publicly that the media should repeatedly challenge the courts to ensure full media access and Chief Justice Mortimer countering by publicly saying that some sensitive matters are private and that no public interest is offended by keeping them so. There is, with respect, much to be said on both sides of this difference.

Your latest play “Gold and Silver” addresses, in part, the impact of Artificial Intelligence. Can you envisage a time when – due to AI or otherwise – court advocacy will be relegated in use?

I don’t know about relegation. I think that may be going too far, but I do not doubt that Artificial Intelligence will have a large impact upon legal practice and judging as it will have upon medicine, architecture, engineering, and other disciplines. Various digital innovations have already made legal research much simpler and, as we know, there are law firms that are sending much of their legal research offshore to be done in much less expensive jurisdictions. I am told that in the United States there are platforms to which disputants can come voluntarily to have minor cases involving comparatively small sums of money for USD$20-30. I have been unable to verify this, but it does seem to me to be credible.

It is a brave person who would predict the future. Nonetheless, I cannot imagine a professional future devoid of the sensibility and sensitivity that the human mind can bring to the resolution of the vicissitudes of life, including disputes between human beings and the corporations and governments that are likely to remain part of the human landscape.

As counsel you appeared against – and as a judge had appear before you – the best advocates of your time. Who were in the upper echelon of those and what were their key attributes?

This is one of the most difficult of all that you have asked me. It raises some of the old chestnuts such as who were the greatest fast bowlers for Australia, the demon Spofforth, Ray Lindwall, Dennis Lillee, or Glenn McGrath?

Another difficulty is that, inevitably, I will overlook some people who deserve to be mentioned. Nonetheless, I will do the best I can with those qualifications.

David Jackson KC was indubitably the best constitutional advocate of my generation.

The best all-round counsel against whom I appeared was Murray Gleeson, although Tom Hughes was very good.

Other counsel who excelled in my opinion were John Karkar from Melbourne, Roger Gyles from Sydney, Tony Meagher, now a Court of Appeal judge in New South Wales, and Wayne Martin who became Chief Justice of the Supreme Court of Western Australia. One of the best junior counsel I had was Chris Steytler who was to become the first president of the new permanent Court of Appeal of Western Australia.

I have had a lot of luck in my life. When I came to the Bar, I went into chambers with Cedric Hampson and Bruce McPherson. Cedric was a great all-rounder, and Bruce was probably the most learned lawyer in the state. Both of them were most helpful to me. I also had the great good fortune to be the pupil of Desmond Sturgess, who was simply the best jury advocate I have seen. There were other very good counsels such as, Bill Pincus who could be emotional at times, and Geoff Davies and Jim Thomas who were formidably understated. Then of course there were also the brilliant but irascible Peter Connolly and Ned Williams who were both fleet of foot between courts. I remember being junior to Peter Connolly on one occasion when a witness was called and Peter said, “you take him”. That was the first I knew that I was to do that, and I said to Peter, “what will I ask him?”. Peter replied, “just make him look unimportant.”

That recollection causes me to reflect further, not without some concern, upon the adjuration to the Bar, from no fewer than two Chief Justices, that junior counsel should be, in effect, given speaking parts by their leaders in cases. I do not think it is the business of judges to be involved in the allocation of work or roles by the lawyers conducting litigation. I always tried, as a leader, to give my juniors an opportunity to take a witness or to play another speaking part, but I would never do that without first explaining what I intended to do and obtaining the approval of the client in particular, and the solicitors. A court case, or an appeal, is not a trial run. It is the main event and an expensive one. If I were a client paying for a silk, I would not expect to see the understudy playing a lead.

Finally, on the topic of able counsel, I should mention the trio of de Jersey, Dowsett, and Byrne, who would have had stellar careers in their middle age had they not accepted elevation to the bench relatively soon after they took silk. I should also mention Doyle KC whom I first encountered when he was a young junior in 1988, and who argued, with ice-cold skill, a very difficult case against me.

As counsel you appeared before many judges, at nisi prius and on appeal. Who were in the upper echelon of those, and what were their key attributes?

As a junior and a silk I appeared before Sir Garfield Barwick. He had a quick silver mind like Lord Diplock, before whom I appeared in the Privy Council. I think Sir Anthony Mason was possibly the cleverest Judge before whom I appeared. Trevor Morling of the Federal Court and John Bryson of the Supreme Court in New South Wales were very good judges. In Queensland, in my generation, Bruce McPherson, and John Dowsett were very good.

It is to be given an invidious choice to name particular people because, overall, in my experience, most judges on most occasions tried very hard to get the right result.

You still practice as a barrister, largely as a mediator, and with acclaim. What is it that keeps you in the field?

Mediation is entirely different from adjudication. It has many attractions for a practitioner. Unlike for a barrister or a judge, for that matter, a mediator sees into the briefs on both sides and has direct contact with the lay clients. I think I have received more expressions of gratitude for the conclusion of a successful mediation than I obtained at the Bar for succeeding in a difficult case. Understandably, the winner in any litigation thinks that he or she has received no more than his or her just deserts. There is also the attraction of remaining in contact with the profession of which I have been a member for almost sixty years plus about five as a solicitor.

You were a gifted, and keen, cricketer. Are the current crop of professional cricketers overpaid?

I like the fact that good cricketers are so well paid. They have to be so fit these days and, as recent events have shown, good enough to compete with the best that the Subcontinent can produce — the Subcontinent of about 1.4 billion people.

How do you rate Australia’s chances in the current five test series against India?

I think it will continue to be a competitive and exciting series.

What is your advice to a barrister commencing practice at the private Bar in 2025?

Find chambers with congenial colleagues and experienced members, keep your mobile turned off when you’re in court and on when you’re not, and take the opportunity to watch the best barristers conduct their cases.

Thank you for your contribution to the legal profession, and to the community.

It is I who owe thanks to the profession.